Gauhati High Court
Narayan Chandra Dey vs Tapan Das And 3 Ors on 29 January, 2021
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GAHC010046992020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/128/2020
NARAYAN CHANDRA DEY
S/O- SRI RAMESH CHANDRA DEY, R/O- GRAHAMBAZAR, BESIDES
GRAHAMBAZAR GIRLS HIGH SCHOOL, P.O., P.S. AND DIST.- DIBRUGARH,
ASSAM.
VERSUS
TAPAN DAS AND 3 ORS.
S/O- LATE TARUN CHANDRA DAS, R/O- KHALIHAMARI, P.O., P.S. AND
DIST.- DIBRUGARH, ASSAM
2:ON THE DEATH OF RATAN DAS (DEFENDANT NO. 2) HIS LEGAL HEIRS
SMT. IRA DAS
W/O- LATE RATAN DAS
R/O- TULSI GAON
NEAR NAMGHAR
MILAN NAGAR
P.O. C.R. BUILDING
P.S. AND DIST.- DIBRUGARH
ASSAM.
3:SMT. PLABANA DAS
D/O- LATE RATAN DAS
R/O- TULSI GAON
NEAR NAMGHAR
MILAN NAGAR
P.O. C.R. BUILDING
P.S. AND DIST.- DIBRUGARH
ASSAM.
4:SMT. RUNA DAS
W/O- SRI PRANAB DAS
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R/O- THANAMUKH ROAD
P.O.
P.S. AND DIST.- SIVASAGAR
ASSAM
Advocate for the Petitioner : MR R CHAKRAVORTY
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
29.01.2021
Heard Mr. R. Chakraborty, learned counsel for the appellant.
2. The matter has been heard at the stage of Order XLI Rule 11 CPC.
3. By this appeal under section 100 CPC, the appellant who is the defendant no.1 in
the suit has assailed the First Appellate judgment and decree dated 19.11.2019 passed by the
learned Civil Judge, Dibrugarh in T.A. No.6/2017, thereby reversing the judgement and decree
dated 28.04.2017 passed by the learned Munsiff No.1, Dibrugarh in T.S. No.62/2011.
4. Before referring to the substantial question of law on which the appeal is to be
admitted, a brief factual matrix is indicated. The respondent no.1 is the plaintiff whose father
was late Tarun Chandra Das, who had left 3 (three) legal heirs, being the respondent no.1-
plaintiff and respondent nos.2 and 3. During his lifetime, late Tarun Chandra Das had
appointed the respondent no.1 as his constituted attorney on 30.03.2009 empowering him to
sell 11 lechas out of 1K 2L of land. On 30.06.2009, late Tarun Chandra Das died and
thereafter on 29.01.2020, the respondent no.2 executed the sale deed in respect of 11 lechas
of land in favour of the appellant. The trial Court accepted the plea of the appellant under
section 43 of the Transfer of Property Act, inter-alia, holding that the appellant was entitled to
his interest as against the share of the vendor. By arriving at a finding that the respondent
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no.2 had a share of 7.33 lechas out of total land of 1K 2L, the interest of the appellant was
declared in respect of the said share. The learned first appellate Court had negated the said
finding by referring to section 202 of the Contract Act, 1872 and it was held that after the
death of the Principal, the Attorney had no authority to dispose of the share of the
respondent no.2.
5. Accordingly, this appeal against the first appellate decree is admitted on the
following substantial question of law:-
Whether the first appellate judgment and decree is contrary to the principle of section 43 of
the Transfer of Property Act and whether on that count the first appellate judgment and
decree liable to be interfered with?
6. The learned counsel for the appellate shall be at liberty to raise any other
substantial question of law as may arise in course of hearing.
7. Issue notice returnable in 6(six) weeks.
8. Let the records be called for.
9. The appellant shall take steps for service of notice on the respondent, by
registered post with A/D as well as by usual process. Steps within 2(two) days.
10. List the matter after 6(six) weeks awaiting receipt of LCR and report regarding
service of notice.
.
JUDGE
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Comparing Assistant
