Page No.# 1/ vs Smt. Mina Kalita Biswas And Anr
2021 Latest Caselaw 465 Gua

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GAHC010158252020




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : RSA/111/2020

         DR. SAMRAT BISWAS AND 2 ORS.
         S/O- SRI PHULCHAN BISWAS, R/O- VILL.- ERAGAON, WARD NO. 6, P.O., P.S.
         AND DIST.- MORIGAON, ASSAM.

         2: SRI SAGAR BISWAS
          S/O- SRI PHULCHAN BISWAS
          R/O- VILL.- ERAGAON
         WARD NO. 6
          P.O.
          P.S. AND DIST.- MORIGAON
         ASSAM.

         3: MRS. MAMONI BISWAS ROY
          D/O- PHULCHAN BISWAS
         W/O- SUNIL ROY
          R/O- VILL.- BARDUBA TUP
          P.O. BHURAGAON
          MOUZA BOKANI
          P.S. BHURAGAON
          DIST.- MORIGAON
         ASSA

         VERSUS

         SMT. MINA KALITA BISWAS AND ANR.
         W/O- PHULCHAN BISWAS, R/O- VILL.- ERAGAON, WARD NO. 6, P.O., P.S.
         AND DIST.- MORIGAON, ASSAM

         2:SRI PHULCHAN BISWAS
          S/O- LATE MUKUNDA LAL BISWAS
          R/O- VILL.- ERAGAON
         WARD NO. 6
          P.O.
          P.S. AND DIST.- MORIGAON
                                                                                     Page No.# 2/11

              ASSA

Advocate for the Petitioner   : MR. N DEKA

Advocate for the Respondent : MR. M DUTTA

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

: JUDGMENT AND ORDER :

10.02.2021

Heard Mr. N. Deka, learned counsel for the appellants. Also heard Mr. M. Dutta, learned counsel for the respondents, who had entered appearance on behalf of the respondents pursuant to notice for mediation that was issued by this Court as per order dated 27.11.2020.

2) This appeal under section 100 CPC is directed against the first appellate judgment and decree dated 13.03.2020, passed by the learned District Judge, Morigaon in T.A. No. 5/2016, thereby dismissing the appeal and affirming the judgment and decree dated 07.09.2016, passed by the learned Civil Judge, Morigaon in T.S. No. 16/2015, thereby dismissing the suit filed by the appellant.

3) The appellant nos.1 and 2 herein are the brothers of appellant no.3. In the plaint, it is projected that the appellants are the children of respondent no. 2.

4) Bereft of details, for the purpose of this judgment, it would be sufficient to mention that the case projected in the plaint, in short, is that the mother of the appellants died on 26.09.1999. Thereafter, the respondent no.2, without performing any formal or social ceremony, purportedly married respondent no.1 secretly. It is claimed that the real mother of Page No.# 3/11

the appellants, when alive had purchased the suit land with her money, but in the name of the respondent no.2. It is projected in the plaint that by virtue of a General Power of Attorney made on 09.12.2002 before the Addl. Deputy Commissioner, Morigaon, a family settlement was made amongst the appellant nos. 1 and 2 and the respondent no.2 for giving the suit land permanently to the appellant nos. 1 and 2, which was made in the presence of three witnesses. It is projected that the entire land is described in the plaint as Schedule-A land, out of which the possession of the land described in Schedule-B of the plaint, which was on the eastern part of the Schedule-A land with house was handed over to the appellant no. 2, the possession of the middle portion of the Schedule-A land was given to the appellant no.1 and the possession of the western part of the Schedule-A land was retained by the respondent no.2. It was claimed that after receiving possession of their respective land, which is collectively referred to as Schedule-B land, the appellant nos. 1 and 2 had completed construction on their respective share of the house. It is claimed that on 25.07.2014, at about 11.00 am., while visiting Circle Office, Morigaon Revenue Circle, they came to learn that the suit land described in Schedule-B was sold by the respondent no.2 at consideration of Rs.4.00 lakh to the respondent no.1, without having possession, vide sale deed bearing registered deed no. 2712 dated 05.10.2013 and that the land revenue records were also corrected. It is claimed that the appellants had applied for cancelation of mutation and the instant suit was filed for seeking decree of declaration of right, title and interest of the appellants over the suit land described in Schedule-B on the basis of family settlement vide Power of Attorney dated 09.12.2013, for confirmation of possession over land described in Schedule-B, for cancellation of sale deed no. 2712 dated 05.10.2013, for precept and permanent injunction and for decree declaring that the revocation of power of attorney (family settlement) as illegal. The respondents no.1 and 2 had contested the suit and asserted that the power of attorney did not confer any right to the appellants and that it was not a title deed, further claiming that the power of attorney dated 09.02.2002 had already been revoked. It was claimed that the power of attorney was given to sell the land and as the appellant nos. 1 and 2 could not sell the land, the suit land was sold by the respondent no.2 to respondent no.1, who was a bona fide purchaser for value. It was claimed that the sale deed was executed after obtaining requisite permission from the Deputy Commissioner, Morigaon, further asserting that the sale deed was executed with sound and clear mind and without any coercion and accordingly, the Page No.# 4/11

respondent no.1 acquired good and valid title. Along with the written statement, the respondent no.1 had also filed a counter-claim, inter alia, claiming right, title, and interest over the suit land described in Schedule-1 of the counter-claim and for recovery of possession of the said suit land by evicting the appellants therefrom. In respect of the counter-claim, the appellants had filed their written statement.

5) The following issues were framed for trial, viz., (1) Whether there is any cause of action for the suit? (2) Whether the plaintiffs have acquired right, title and interest over suit 'B schedule land on the basis of family settlement? (3) Whether the suit is maintainable in its present form and manner? (4) Whether the registered sale deed No.2712 dated 5.10.2013 executed by defendant No.2 in favour of defendant No.1 is illegal, collusive and liable to be cancelled? (5) Whether there is any cause of action for the counter claim of defendant No.1? (6) Whether the defendant No.1 counter claimant has acquired right, title and interest over schedule land of the counter claimant? (7) Whether the plaintiffs are entitled to the decree as prayed for? (8) Whether the defendant No.1 is entitled to get decree as per her counter claim?

6) From the judgment passed by the learned trial Court, it appears that the appellants' side had examined four witnesses, including the appellant nos. 1 and 2 as PW-1 and PW-2 and the following documents were exhibited, viz., General Power of Attorney (Ext.1), copy of jamabandi for patta no. 553 (Ext.2), certified copy of sale deed no. 2712 dated 05.10.2013 (Ext.3), money receipts [Ext.4 to 4(iv)], material purchase vouchers [Ext.5 to 5(iii)]. The respondents' side had examined three DWs including the respondent nos. 1 and 2 as DW-1 and DW-2 and exhibited the following documents, viz., registered sale deed (Ext.Ka), copy of jamabandi of patta no. 553 (Ext.Kha), registered sale deed no. 71 dated 11.01.1990 [Ext.Ga(1)], registered sale deed no. 72 dated 11.01.1990 [Ext.Ga(2)], registered sale deed no. 73 dated 11.01.1990 [Ext.Ga(3)], registered sale deed no. 74 dated 12.09.1991 [Ext.Ga(4)], General Power of Attorney dated 21.11.2014 [Ext. Gha(1)], postal receipts [Ext.Ungo(1) & Unga(2)], postal A/D cards (Ext.Cha).

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7) In respect of issue no. 2, it was held that the suit land was the self acquired property of the respondent no.2, who was still alive. The plea that the suit land was purchased by Sibani Biswas during her lifetime in the name of respondent no.2 was discarded as not tenable in view of Benami Transaction (Prohibition) Act. It was held that under the Dayabhaga School of Hindu law, applicable in this case, during the lifetime of father, the sons do not form coparcener in respect of father's self acquired property. In respect of issue no.2, it was held that the appellants had claimed right on the basis of Ext.1, but as per evidence of DW-1, the said Ext.1 was revoked by Ext.Gha(1). It was also held that at any rate, Ext.1 cannot operate for transferring right, title, and interest of the suit land and house standing thereon in favour of the appellants. It was also held that Ext.Ga(1) to Ext.Ga(4) clearly proved that the respondent no.1 had purchased the suit land from the respondent no.2. Accordingly, it was held that Ext.Ka was a legally executed sale deed by respondent no.2, the rightful owner, in favour of respondent no.1 and, as such, the issues no.2 and 4 was answered in the negative. Resultantly, in light of decision on issue nos. 2 and 4, the issue no.1 was also decided in the negative and holding that cause of action for the suit did not arise. In view of decision on issue nos. 1, 2 and 4, it was held that the suit was not maintainable. In respect of issue no.6, it was held that the respondent no.1 was residing on the suit land with the respondent no.2 and their son, and on purchase of the suit land, the same was mutated in the name of respondent no.1, as proved vide Ext.Kha and, as such, the issue was decided in the affirmative. In respect of issue no.6, it was held that in view of finding on vital issue nos. 4 and 6, it became clear that Ext. Ka was legally executed by the appellant no.2, its rightful owner in respect of the suit land and the respondent no.1 (counter claimant) had acquired right, title and interest over the suit land, as such, it was held that there was cause of action for the counter-claim. As a result, in respect of issue nos. 7 and 8, it was held that the suit of the appellants was liable to be dismissed and they were not liable to get any decree and it was held that the respondent no.1 was entitled to get decree as per her counter-claim and accordingly, the suit was dismissed and the counter-claim was decreed.

8) In appeal preferred by the appellant, the learned lower appellate Court had Page No.# 6/11

referred to the materials on record, and formulated three points of determination as follows, viz., (i) Whether the Exhibit 1 document is a Power of Attorney or a family settlement between the plaintiffs and their father, principal defendant No.1 or can it be treated as a deed of relinquishment of rights over the suit property? (ii) Whether the plaintiffs have obtained any title of the basis of Exhibit-1, Deed? (iii) Whether the impugned judgment and order needs any interference? The learned lower appellate Court discussed the evidence issue wise along with the points for determination and points of decision were answered by holding that the appellants could not inherit the self acquired property of father during the life time of their father as they were governed by Dayabhaga School of Hindu law. The power of attorney (Ext.1), being a unilateral document, was not accepted as a deed of family settlement and it was also held that by family settlement, the owner cannot transfer property to a non- owner and that the same can only be done by sale deed or by a gift deed. Accordingly, by assigning reasons, the learned lower appellate Court concurred with the finding of the learned trial Court on all the issues. Resultantly, the appeal was dismissed by affirming the decree passed by the learned trial Court.

9) In this appeal, the learned counsel for the appellants has meticulously referred to all the materials on record. It has been submitted that the power of attorney (deed of family settlement) (Ext.1) was annexed as Annexure-A to the accompanying interlocutory application. It is submitted that as per the recitals contained therein, the respondent no.2 had clearly and unambiguously handed over possession of the suit land measuring 34 lessas out of 2K-10L land to the appellant nos. 1 and 2, and that the respondent no.2 retained 16 lessas land for himself. It is submitted that the house standing on the entire land was divided in three equal parts in north-south basis and that possession of two-third portion of the house was transferred to the appellant nos. 1 and 2 and one remaining part of the house was retained by the respondent no.2. It is submitted that as attorney, the appellant nos. 1 and 2 were permitted to maintain 34 lessa land with houses thereon, beneficial interest was created in their favour and because of such settlement, the appellant nos. 1 and 2 had spent their money to improve the land and building and they also constructed their share of the house to suit their requirement and accordingly, it is submitted Page No.# 7/11

that by virtue of section 202 of the Contract Act, 1872, the power of attorney by which agency was created in favour of the appellant nos. 1 and 2, could not be lawfully terminated. In support of his submissions, the learned counsel for the appellants has referred to the cases of (i) Seth Loon Karan Sethiya Vs. Evan E. John & Ors., AIR 1969 SC 73 , and (ii) Palani Vannan & ors. Vs. Krishnaswami Konar & Ors., 1946 ILR (Mad) 121 . It is also submitted that the learned courts below failed to appreciate that a power of attorney could not have been cancelled without any notice to the appellant nos. 1 and 2. The learned counsel for the appellants has also made his submissions on the various grounds for appeal. The submissions made by the learned counsel for the appellants are countered by the learned counsel for the respondents.

10) At the outset, it must be mentioned that the argument advanced by the learned counsel for the appellants appear to be very attractive. Accordingly, the materials available on record have been carefully perused. It is true that by virtue of the power of attorney (Ext.1), inter alia, the appellant nos. 1 and 2 were permitted to maintain 34 lessa land. However, merely because of the said clause, it cannot be accepted that any beneficial interest whatsoever was created in favour of the appellants. Therefore, if in the name of maintenance the appellants had made any expenditure, there are two ways to look at the said act. Firstly, it is quite plausible that the expenditure incurred was a gratuitous act, which the two able bodied and well earning sons i.e. the appellant nos. 1 and 2 can do for the benefit of their father. Secondly, if the act was non- gratuitous, then the appellants would have the right to avail remedy, if any, as provided for under section 70 of the Contract Act, 1872. The learned counsel for the appellants has referred to the provisions of section 202 of the Contract Act. The same is quoted below:-

"202. Termination of agency, where agent has an interest in subject-matter.

Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.

Illustrations

(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to Page No.# 8/11

him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.

(b) A consigns 1,000 bales of cotton to B who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death ."

The two illustrations appended to the said provisions of law clearly explain the purport of the said provisions of law. Moreover, in light of the said illustrations, there is no room for doubt that no beneficial interest was created in favour of the appellant nos. 1 and 2, merely because it was provided in Ext.1 that the said appellants would maintain 34 lessa land. Hence, the cases cited by the learned counsel for the appellants do not help the appellants in any manner.

In the case of Palani Vannan (supra), the decree was assigned by the decree holder to one Govinda Konan. On 19.07.1939, Govinda Konan executed a power of attorney to one Vedavysachar authorizing him to execute the decree. On 03.02.1941, Govinda Konan assigned the decree to the first respondent. On 06.02.1941, Govinda Konan sent a notice to Vedavysachar, revoking the power of attorney. The execution petition before executing Court

was to recognize the assignment dated 03.02.1941. On 10 th and 11th July, 1942 there was a compromise between the said Vedavysachar and the appellants. The attorney had made certain expenses. In such factual matrix, the Madras High Court had returned a finding that the object of indemnity clause that against out-of-pocket expenses which the attorney was entitled to recover the amount from the decree was not for the purpose of securing any interest of the agent, as such, the said clause was held to be only incidental. Thus, the cited case does not help the appellants in any manner.

11) The case of Loon Karan Sethiya (supra), also does not help the appellants because in the said case, power of attorney was given to the bank to recover its dues, as such, it was held that the interest was created in favour of the attorney because on acceptance of such security, financial accommodation was granted to the borrower.

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12) The power of attorney cannot take place of a registered sale deed. Hence, the learned courts below have correctly appreciated that there cannot be any lawful transfer of right, title and interest of the suit property in favour of the appellants. The learned counsel for the appellants had also mentioned that the sale deed was executed despite the fact that the respondent no.2 did not have any possession over the suit land and did not deliver the land covered by the sale deed to the respondent no.1. In this regard, it would be appropriate to refer to the case of Manmatha Ranjan Tribedi Vs. Gopal Krishna T.E. Pvt. Ltd., (2006) 2 GLR 565, wherein this Court had held, inter alia, that it was clear that in order to acquire valid right, title and interest over any immovable property valued Rs.100/- or above by way of purchase, it should be effected by a registered instrument by payment or promising to pay the consideration money and that the Transfer of Property Act does not lay down any condition that in order to acquire title over a property purchased by executing registered sale deed, the delivery of possession is a condition precedent. Accordingly, it was held in the said case that by virtue of the registered sale, the right, title and interest over the land mentioned in the Schedule of the sale deed and interest over the concerned land had been validly transferred.

13) Notwithstanding that the argument advanced by the learned counsel for the appellant had appeared to be attractive, as such, the argument has been discussed, but otherwise, the said aspect was neither pleaded in the plaint nor in the written statement against counter claim and resultantly, no issues was framed in this regard during trial.

14) At this stage, the Court is reminded of the ratio laid down by the Supreme Court of India in the case of Bachhaj Nahar Vs. Nilima Mandal, AIR 2009 SC 1103 , wherein it was held as under:-

"(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court.

(ii) A Court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the Page No.# 10/11

facts and the cause of action alleged in the plaint.

(iii) A factual issue cannot be raised or considered for the first time in a second appeal. Civil Procedure Code is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate that many a time, fulfillment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation, should not be a ground to float the settled fundamental rules of civil procedure. Be that as it may. We will briefly set out the reasons for the aforesaid conclusions."

15) Thus, in light of the discussions above, the Court is constrained to hold that no substantial questions of law arise for adjudication in this case in hand. It could not be demonstrated that the finding of fact was vitiated by perversity in appreciating the pleadings on record. It is not the case of the appellants that the suit was decreed by incorrect application of law. The grounds strenuously agitated by the learned counsel for the appellants appears to be not raised during trial, as such, cannot be taken up in exercise of jurisdiction under section 100 CPC. This is not a case where the findings have been arrived at by wrongly casting the burden of proof on a wrong party. This is also not a case where any finding recorded by the learned Courts below is contrary to evidence on record or by ignoring material evidence on record. This is also not found to be a case where the Courts below had arrived at a finding despite lack of admissible evidence. This is also not a case where the evidence as a whole, does not lead to preponderance of probability that the appellants had succeeded to show that the respondent no.1 had no right, title or interest over the suit property. The appellants had made an attempt to project that by way of the power of attorney, coupled with handing over possession of the suit land, beneficial interest was created in favour of the respondent no.1. However, as elaborately dealt with herein before, the respondent no.2 was alive and he had transferred the right, title, interest and ownership of the suit land in favour of the respondent no.1. Moreover, the power of attorney was proved to have been revoked. The appellants could not prove devolution of any beneficial interest in favour of the appellant no.1 in respect of the suit land. Accordingly, this appeal fails and the same is dismissed. The appellants are left to bear their own cost.

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16)             Let the decree of dismissal of the appeal be prepared.



17)             As required under the provisions of Order XLI Rule 11(3) CPC, the Registry

shall notify the dismissal of this appeal to the Court of the learned District Judge, Morigaon in connection with Title Appeal No. 5/2016, disposed of vide judgment and decree dated 13.03.2020.

JUDGE

Comparing Assistant