Daitari Patra vs Manju Devi Jain & Others
2021 Latest Caselaw 12217 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                                RSA No.124 of 2012

            Daitari Patra                                       Appellant
                                                    ....
                                                    Mr.A.Mishra, Advocate
                                        -versus-

            Manju Devi Jain & Others                ....       Respondents
                                                         Mr.H.K.Tripathy,
                                                                Advocate

                      CORAM:
                      MR. JUSTICE D.DASH
                                        ORDER

29.11.2021 Order No.

06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode).

2. The Appellant, by filing this Appeal under section 100 of the Civil Procedure Code (for short, 'the Code'), has assailed the judgment and decree dated 27.12.2011 and 06.01.2012 passed by the learned 1st Additional District Judge, Puri in R.F.A. No.11/114 of 2009/2004.

By the said judgment, while allowing the First Appeal filed by present Respondent No.1 under section 96 of the Code in challenging the judgment and decree passed by the learned Additional Civil Judge, Senior Division, Puri in T.S. No.170/168 of 2001/2000 in dismissing her suit, has set aside the same and passed the following order:-

"17.In the result, the appeal is allowed on contest against the respondents but in the circumstances without any cost. The impugned judgment and decree

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dated 24.07.2004 passed in T.S. No.170/168 of 2001/2000 by the learned Additional Civil Judge (Senior Division), Puri is hereby set aside. As necessary collar thereof, the sale deed executed by defendant No.1 as power-of-attorney holder of the plaintiff in favour of defendant No.1 as power-of-

attorney holder of the plaintiff in favour of defendant No.2 Deepa Agrawala and the sale deed executed by Deepa Agrawala (Defendant No.2) in favour of defendant no.3-Daitari Patra are in valid in the eye of law and not binding on the plaintiff and the same be delivered up, The right, title and interest of the plaintiff is hereby declared. The possession of the plaintiff over the suit land is hereby confirmed. The defendants are permanently injuncted from entering into or interfering in the possession of plaintiff over Schedule 'A' property in any manner."

3. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

4. The Plaintiffs' case, in short, is that her husband and Defendant No.1 carry on business at Pipili. The Plaintiff along with her husband and Defendant No.1 were in good terms. The Plaintiff used to visit Pipili and she purchased 'A' schedule prolperty from Chanduri Mallik and others of village Bhabanipur in order to build a residential house over the same after obtaining necessary permission from the concerned Authority and she was in possession of the same. As ill luck would have it, she became ill and was bed ridden. So, she sent information to her husband then at Pipili regarding her illness. The husband of the Plaintiff, therefore, sought for a financial help from the Defendant No.1 in providing a sum of Rs.2000/- and promised that the same would be returned later. The Plaintiff's father is a heart patient and he was then having

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partial paralysis. But during treatment of the Plaintiff at her parental home, the Defendant arrived there and demanded payment of the aforesaid amount with interest. The Plaintiff and her husband expressed their inability to return the same and submitted that the payment would be made with a fortnight. This was not acceptable to Defendant No.1 and he then asked them to execute a security bond in his favour in respect of the Pipili property. The Defendant No.1 as created ugly scene there the Plaintiff was compelled to sign on the document which had been prepared in English and this is said to have been so done only to keep their prestige in the locality at that time. The said document is said to be one obtained by Defendant No.1 from the Plaintiff towards the security for payment of Rs.2000/- at a later date. The Plaintiff and her husband then came to Pipili on 25.05.2010 and there it came to their knowledge that Defendant No.1 had obtained a power of attorney in place of deed of security. It was known that on the strength of said power of attorney, he has sold schedule 'A' property to his wife, the Defendant No.2 for a sum of Rs.12,500/-. The certified copy of the power of attorney was then obtained and it was known that the document, i.e. the deed of security in which the Plaintiff had put her signature believing in good faith that she was executing the deed of security had cunningly been created as power of attorney. In view of all these above, this power of attorney is attacked as invalid and it is said that Defendant No.1 had no right to sell the property on behalf of the Plaintiff. It is said that the consideration was not paid and possession of the suit land was not delivered to Defendant No.1 by the Plaintiff. It is stated that the Plaintiff had never parted with the possession of the property and it had neither

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been delivered to Defendant No.2 nor to the Defendant No.1 and it is further in possession of the Plaintiff.

It is next stated that Defendant No.2 had executed sham document in favour of Defendant No.3, who has also not got the possession and now is trying to interfere with the possession of the suit land resting with the Plaintiff on the strength of said registered sale deed dated 10.09.2001 executed by Defendant No.2. The Defendant Nos.1 and 2, entering their appearance, in their written statement, have pleaded all in support of the factum of the execution of the power of attorney by the Plaintiff in favour of Defendant No.1. It is stated that the husband of the Plaintiff had approached the Defendant No.1 to pay him a sum of Rs.5000/- for treatment of the Plaintiff. Accordingly, that had been paid by the Defendant No.1. It is further stated that the Plaintiff and her husband in view of the illness of the Plaintiff had expressed their inability to return the money and they thus stating their intention to sell Schedule 'A' land had requested him to search for a customer. They asked him to purchase the stamp paper for execution of the power of attorney in favour of the Defendant No.1 to enable him to execute the sale deed on behalf of the Plaintiff. They assured that his money would be refunded after sale of the land. So, it is stated that pursuant to the said request, Defendant No.1 purchased stamp paper, went to the house of the Plaintiff where the Plaintiff executed the power of attorney which was notarized and it was so executed by the Plaintiff being fully aware of its contents and in fact it was as per her desire and she as also her husband knew that it was enable Defendant No.1 to sell the schedule 'A-1' land at the earliest possible time. At this point of time, the Defendant No.2, the

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wife of Defendant No.1 expressed his desire to purchase the land by arranging money from her father. So Defendant No.1 executed a sale deed in her favour for consideration of Rs.12,500/- and delivered possession of the suit land. The Plaintiff and her husband then refunded a sum of Rs.2500/- and requested the Defendant No.1 that the rest amount of Rs.2500/- be no more be pressed for payment keeping in view the health condition of the Plaintiff and her father. However, the Defendant No.1 agreed to the extent that they would pay the rest later. Thereafter, her husband to Pipili and thereafter when the husband of the Plaintiff returned to Pipili, he, on being asked to pay the balance amount, the suit has been filed.

5. The Defendant No.3, entering appearance, in his written statement, stated that the Defendant No.2 has purchased the suit land from Defendant No.1, the power of attorney holder of the Plaintiff and has been in possession of the suit land being so delivered with when he is a bona fide purchase form Defendant No.2 and had been in possession of the same with respect of the land measuring Ac.0.021/2 decimals by registered sale deed dated 10.09.2001 having paid a sum of Rs.12,500/-. He thus asserted himself to be the owner of the said land which he has got mutated in his name by order in Mutation Case No.589/116 pursuant to his purchase for valuable consideration.

6. The Trial Court, on the above rival pleadings, has framed as many as nine issues. First of all, answering issue no.3 as to the genuineness of the power of attorney, upon examination of the evidence and their evaluation, it has been held to be genuine and legal. Next coming to the important to issue as to the validity of

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sale deed made in favour of Defendant No.2-wife by her husband- Defendant No.1, the power of attorney holder, the answer has been rendered in favour of the Defendants and consequentially, it has been said that the sale made by Defendant No.2 in favour of Defendant No.3 is also valid. The First Appellate court, on examination and evaluation of the evidence at its level, has over- tuned the above findings returned by the Trial Court. It has held that the power of attorney standing in favour of the Defendant No.1 as invalid and so also the sale made by him as the power of attorney holder Plaintiff to his wife, the Defendant No.2 and subsequent sale made by Defendant No.2 in favour of Defendant No.3 have been held invalid and inoperative.

7. Mr.A.Mishra, learned counsel for the Appellant (Defendant No.3) submits that the findings recorded by the Trial court on just and proper appreciation of the evidence on record, have been set aside by the First Appellate Court without assigning good reasons/justifications. According to him, the power of attorney (Ext.A) having been duly proved to have been executed by the Plaintiff in favour of Defendant No.1 authorizing him to sell the suit land could not have been held to be invalid and the sale of the suit land by that Defendant No.1 in favour of Defendant No.2 so also the subsequent sale by Defendant No.2 in favour of Defendant No.3 have been erroneously held by the First Appellate Court as invalid. It is further submitted that Defendant No.3 being the bona fide purchaser for value when had purchased the suit land from Defendant No.2, upon enquiry on seeing the registered sale deed and power of attorney, he could not have been deprived of the

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benefit of his purchase. He, therefore, urges for admission of this appeal framing the above as the substantial questions law.

8. In order to address the submission, I have carefully gone through the judgments passed by the Trial Court as well as the First Appellate Court.

9. The suit property is now claimed by Defendant No.3 on the basis of the registered sale deed obtained by him from Defendant No.2. Said Defendant No.2 claims to have derived the title and thus the power to alienate the same on the strength of the sale deed executed by Defendant No.1 as the power of attorney holder of the Plaintiff in her favour. So, the claim of the Defendant No.3 is founded upon his sale deed (Ext.B-1) dated 10.09.2001 is dependent upon the validity of the sale deed standing in favour of Defendant No.2 marked as Ext.A-1, which is dated 15.2.2000. The challenge to these sale deeds from the side of the Plaintiff is on the score that those are sham documents and it is said that neither any consideration was paid and received in those connections nor the possession of the land in question had been delivered.

Accepting the submission of the learned counsel for the Appellant (Defendant No.3) and accordingly assuming for a moment that the power of attorney executed by the Plaintiff in favour of Defendant No.1 is valid in empowering him to sell the suit land on behalf of the Plaintiff, it would be proper to first have a look at the evidence on record. The evidence on record has been discussed by the First Appellate Court in detail. The factual setting stands that so-called power of attorney holder (Defendant No.1) is none other than the husband of Defendant No.2 and he, on the

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strength of that power of attorney, on behalf of the Plaintiff has executed the sale deed (Ext.A-1) in favour of his wife (Defendant No.2). It is pleaded that his wife, the Defendant No.2 expressed her desire to purchase the suit land by paying the prevalent price by arranging the money from her father and that having been paid, the Defendant No.1 executed the sale deed selling the suit land in favour of his wife (Defendant No.2) for a consideration of Rs.12,500/-, which was the then market value of the land and pursuant to the same, he delivered possession of the property to Defendant No.2. It is not said that the Defendant No.2 had any source of income at the relevant time. No evidence has been tendered in support of the contention that Defendant No.2 had brought the consideration amount from her father. In view of the relationship between the power of attorney holder (Defendant No.1) and the purchaser (Defendant No.2) as husband and wife in the absence of any independent evidence or evidence through documents relating to the payment of consideration, it is not at all possible to say for a moment that the Defendant No.2 had paid the consideration towards consideration to the Defendant No.1, who is none other than her husband in order to sustain the sale deed in question that it is a valid transaction. In the facts and circumstances as obtained in evidence, the burden of proof was upon the Defendants to establish by clear, cogent and acceptable evidence as to payment of consideration and receipt of the same by the Defendant No.1 on behalf of the Plaintiff as his power of attorney holder. The Defendants are also not saying that the entire consideration received towards the first transaction had been paid to the Plaintiff.

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The sale of an immovable property has to be for a price. The price may be paid beforehand, immediately or in future or it may be paid partly remaining the part to be paid in future. In any case, payment of price is an essential part of a sale covered under section 54 of the Transfer of the Property Act, 1882. If a sale deed in respect of an immovable property is executed without payment of price or as promised to be paid in future, it is of no legal effect and it has to be held to be void and as such will not effect the transfer of immovable property. The first transaction of sale of land to the Defendant No.2 is thus seen to be without the compensation (Ref:-Kewal Krishan -vrs- Rajesh Kumar and others etc; Civil Appeal No.6989-6992 of 2021 decided by the Hon'ble Apex Court on 22.11.2021). When the Plaintiff has challenged the power of attorney stating that she had not executed the same appointing Defendant No.1 as her attorney to sell the suit land on her behalf and it was taken from her as a deed of security for repayment of a sum of Rs.2000/- taken from Defendant No.1 to meet their urgent necessity, it is seen that the First Appellate Court dealing the evidence in detail has noticed the suspicious features surrounding the said power of attorney (Ext.A). The stamp paper for Ext.A being purchased at Pipili, it is said to have been executed before the Notary, Allipurduar Court under Jalpaigudi District in the State of West Bengal. The same does neither contain the endorsement as to have been written under instruction of the principal nor it is indicated therein that its contents were read over and explained to the principal therein. In order to sustain the said power of attorney that it has been validly executed by the Plaintiff, neither the said Notary nor the witnesses have been examined form the side of the

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Defendants. With such evidence on record coupled with the evidence that the Plaintiff is an illiterate lady, this court finds that the First Appellate Court has not fallen in error in holding that the execution of the power of attorney (Ext.A) has not been duly proved and the Defendants have failed to discharge the burden of proof on that score resting on their shoulder.

In view of the aforesaid, this Court is of the view that the errors committed by the Trial Court in holding that the power of attorney as well as the subsequent sales of the suit land made in favour of Defendant No.1 and then in favour of Defendant No.3 are all valid have been rightly rectified in returning the findings to the contrary.

In the wake of aforesaid, this Court is not in a position to accept the submission of the learned counsel for the Appellant that there arises any substantial question to be answered in this Appeal.

10. In the result, the Appeal stands dismissed. However, no order as to costs is passed.

(D. Dash), Judge.

Basu