Gauhati High Court
Hira Das vs On The Death Of Lakhi Ch. Das Represented ... on 11 June, 2024
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
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GAHC010127662008
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/163/2008
HIRA DAS
VERSUS
ON THE DEATH OF LAKHI CH. DAS REPRESENTED BY LABANYA DAS and
ORS
Advocate for the Petitioner : MR.J ROY
Advocate for the Respondent : MR.K U AHMED
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
For the Appellant : Shri J Roy, Senior Advocate &
Shri BP Sarma, Advocate.
For the Respondents : Shri MA Sheikh, Advocate.
Date of Hearing : 11.06.2024.
Date of Judgment : 11.06.2024.
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JUDGMENT & ORDER
The present appeal is preferred under Section 100 of the Code of Civil
Procedure challenging a judgment and decree dated 19.05.2008 passed by the
learned Addl. District Judge, Nagaon in Title Appeal No. 10/2006 whereby the
said appeal was dismissed.
2. By the aforesaid impugned judgment and decree dated 19.05.2008, the 1 st
Appellate Court had affirmed the judgment and decree dated 27.03.2006 passed
by the learned Civil Judge (Sr. Division) in Title Suit No. 46/1993. The appellant
herein was the defendant no. 1 in the aforesaid title suit. The said suit was
instituted for declaration of right, title and interest and recovery of khas
possession.
3. The projected case in the plaint was that on 10.03.1980, a Power of
Attorney was executed by the plaintiff in favour of the defendant no. 1 to look
after the suit land as the plaintiff was a government servant. On 09.08.1991,
the said Power of Attorney was cancelled and the land in question which was in
the possession of the defendant no. 1 was demanded back. Initially, the plaintiff
had also instituted a proceeding under Section 145 of the Cr.PC in which,
however, a direction was given for approaching the appropriate forum of law.
Consequently, the Title Suit No. 46/1993 was instituted as mentioned above.
The learned Trial Court had decreed the aforesaid title suit in favour of the
plaintiff and the said judgment and decree has also been upheld by the 1 st
Appellate Court by the impugned judgment and decree dated 19.05.2008.
4. This Court vide order dated 28.11.2008 had framed the following
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substantial question of law:
"Whether the Issue No. 5 could be decided in favour of the
plaintiff by resorting to the provisions of Sections 207 of the
Indian Contract Act, 1872?"
5. I have heard Shri J Roy, learned Senior Counsel assisted by Shri BP Sarma,
learned counsel for the appellant. I have also heard Shri MA Shekh, learned
counsel for the respondents.
6. Shri Roy, learned Senior Counsel, at the outset, has informed this Court
that during the pendency of the case, the original plaintiff-Lakhi Ch. Das has
passed away and he has accordingly substituted by ten numbers of legal hers.
However, two of the legal heirs, namely, no. 1 and 3 have also passed away.
The principal defence taken in the written statement by the present defendant
was that he did not have any knowledge regarding the cancellation of the Power
of Attorney.
7. By drawing the attention of this Court to the written statement filed by the
appellant in the suit, the averments made in paragraph 11 have been relied
upon. It is contended that upon consideration of the rival pleadings, the issues
were framed and the relevant issue is Issue No. 5 which reads as follows:
"5) Whether the power of attorney was cancelled with the
knowledge of the defendant no. 1?"
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8. The learned Senior counsel for the appellant has submitted that the
recourse to Section 207 of the Indian Contract Act, 1872 was not justified in the
facts and circumstances of the case. It is further submitted that the materials on
record, including the evidence would not be enough to establish that there was
any notice issued for revocation of the concerned Power of Attorney dated
10.03.1980. The learned Senior Counsel, accordingly submits that the
substantial question of law is to be decided in favour of the appellant and
accordingly, this Court should intervene with the impugned judgment and
decree and the suit should be dismissed.
9. Per contra, Shri Sheikh, learned counsel for the respondents has submitted
that the materials on record would show that the concerned Power of Attorney
dated 10.03.1980 was cancelled on 09.08.1991 and therefore, upon such
cancellation, whatever right had accrued to the defendant had extinguished. He
submits that in any case, the said Power of Attorney was only restricted to look
after the land and on such cancellation, the land was supposed to be handed
over back.
10. On the aspect of notice before such revocation, Shri Sheikh, learned
counsel submits that there are materials on record that the defendant was
informed about such revocation as the original plaintiff, who was a government
servant, was on the verge of his retirement and after such retirement, he had
expressed his desire to reside over the said plot of land by himself.
11. The learned counsel for the respondents has also submitted that recourse
to Section 207 of the Indian Contract Act, 1872 by the learned Court below was
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justified on the facts and circumstances of the case as the suit was intuited only
after the initial attempt by the plaintiff by instituting a proceeding under Section
145 Cr.PC had failed to get the desired result. The learned counsel has also
informed that the original plaintiff, who was the executor of the Power of
Attorney, had passed away and therefore, for all practical purposes, the power
of attorney has become otiose.
12. The rival submissions made by the learned counsel for the parties have
been duly considered and the materials placed before this Court have also been
carefully examined.
13. The learned Court below has invoked the provisions of Section 207 of the
Indian Contract Act, 1872 which lays down that revocation and renunciation can
be expressed or implied. However, in the considered opinion of this Court, the
issue was not connected with the act of revocation of the instrument but the
requirement of notice prior to such revocation. The defence taken in the written
statement is lack of knowledge of such cancellation. The perusal of the written
statement would, however, show that the defence was not pertaining to non-
receipt of notice before such revocation. The materials on record would show
that the action of cancellation was informed to the defendant by registered post
with A/D. However, the said action is not related to a prior notice for such
revocation which is a requirement of law. However, this Court has also noticed
that there are materials on record to show that the original plaintiff had
informed the defendant no. 1 regarding the intention to possess the land on his
own as he was on the verge of retirement.
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14. This Court has also taken note of the fact that the executor of the Power
of Attorney i.e. the original plaintiff has passed way in the meantime and
therefore, the Power of Attorney has become otiose for all practical purposes.
15. Considering all the facts and circumstances, this Court is of the opinion
that the impugned judgment and decree passed by the learned 1 st Appellate
Court dated 19.05.2008 in Title Appeal No.10/2006 affirming the judgment and
decree dated 27.03.2006 passed by the learned Civil Judge (Sr. Division) in Title
Suit No.46/1993 does not require any interference. The substantial question of
law is accordingly answered against the appellant and in favour of the
respondent.
16. The appeal accordingly stands dismissed.
17. Send back the record.
JUDGE
Comparing Assistant
