Supreme Court of India
MANIK MAJUMDER AND OTHERSversusDIPAK KUMAR SAHA (DEAD) THROUGH LRS. & OTHERS
- Citation
- 2023 INSC 34
- Decided
- 13 January 2023
- Disposal
- Matter referred to larger bench
- Bench
- M R SHAH
Holding
A statutory presumption under Section 60 cannot be drawn where the power of attorney was not executed in compliance with Section 33(1)(c), and the sale deeds are invalid, so the trial court’s dismissal was justified.
Summary
The plaintiffs sought a declaration of title over land based on two sale deeds dated 3 September 1968 and 29 September 1968, the first executed by plaintiff 2 as an attorney of the original owner who allegedly executed a power of attorney (PoA) in East Pakistan. The trial court and the first appellate court dismissed the suit, holding that the PoA was not produced and that the requirements of Section 33(1)(c) of the Registration Act, 1908 were not satisfied, so no statutory presumption could be drawn. The High Court reversed those findings, invoking a presumption under Section 60 on the basis of the registrar's endorsement and decreed the suit in favour of the plaintiffs. On appeal, the Supreme Court held that the High Court erred: without compliance with Section 33(1)(c) and without production of the PoA, the statutory presumption could not arise, and the trial court’s dismissal was correct. Consequently, the High Court judgment was set aside and the trial court decree restored.
Issues considered
- Whether a sale deed executed on the strength of a power of attorney executed abroad complies with Section 33(1)(c) of the Registration Act, 1908.
- Whether the non‑production of the power of attorney defeats the plaintiff’s claim of title.
- Whether a statutory presumption under Section 60 of the Registration Act can be drawn in the absence of compliance with Section 33(1)(c).
- Whether the burden of proof lies on the plaintiff or the defendant in a title suit involving a power of attorney.
Legislation cited
- Code of Civil Procedure, 1908s. 100, s. Order 6 Rule 17
- Indian Evidence Act, 1872s. 67, s. 85
- Registration Act, 1908s. 32, s. 33, s. 34, s. 35, s. 58, s. 59, s. 60
Subjects
Power of attorneyRegistration ActSection 33(1)(c)Statutory presumptionSale deedTitle suitEvidence ActCivil Procedure CodeRegistration of documentsBurden of proof
Judgment
140 [2023]REPORTS
SUPREME COURT 4 S.C.R. 140 [2023] 4 S.C.R.
A MANIK MAJUMDER AND OTHERS
v.
DIPAK KUMAR SAHA (DEAD) THROUGH LRS. & OTHERS
(Civil Appeal No. 2965 of 2022)
JANUARY 13, 2023
B
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Registration Act, 1908 – ss. 32, 33 and 60 – Execution of
sale deed on the strength of a deed of Power of Attorney – Non-
production of the deed of power of attorney – Effect of, to the case
of plaintiff in the suit – Power of attorney (PoA) executed outside
C India – Presumption as to correctness of the PoA – On facts, PoA
allegedly executed in East Pakistan by the original owner in favour
of respondent No. 2 – Respondent No. 2 thereafter executed two
sale deeds transferring the suit property firstly in his own favour
and then in favour of his wife – Respondents then filed suit for
D declaration of title over the subject land and recovery of khas
possession from the appellants – Respondent no. 2 claimed his
ownership on the basis of sale deed executed by the respondent no.
1 in his own favour on the basis of PoA executed by the original
owner, however, the same PoA not produced before the trial court –
Appellant’s case that they are the owner of the part of the suit
E property and have been in possession for more than 40 years –
Trial court dismissed the suit since no right, title or interest was
established in favour of respondent No.2 for want of PoA for proper
execution of the sale deed in his favour; and that the provisions of
s. 33(1)(c) not complied with – First appellate court upheld the
F same – However, the High Court allowed the Second Appeal by
drawing presumption u/s. 60 in respect of PoA by virtue of
endorsement – High Court directed the appellants to handover the
vacant possession of the suit land to the respondent – On appeal,
held: In view of the difference of opinion, the matter referred to the
larger bench – Reference to larger Bench – Power of attorney.
G
Referring the matter to larger Bench, the Court
Per M.R. SHAH, J.
HELD: 1.1 When the plaintiffs claimed title on the basis of
the aforesaid two sale deeds dated 2.9.1968 and 29.09.1968, it
H was for the plaintiffs to prove even the execution of the sale deeds.
140
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 141
(DEAD) THROUGH LRS. & OTHERS
The defendants were not required to challenge the sale deeds in A
the suit filed by the plaintiffs, who prayed for a decree for a
declaration of title in their favour. When plaintiff No.2 claimed
title on the basis of the PoA executed by the original owner and
thereafter executed the sale deed in favour of plaintiff No.1 as
PoA of the original owner, the conditions provided under Section
B
33(1)(c) of the Registration Act are required to be strictly complied
with. [Para 6][158-G-H; 159-A]
1.2 As per Section 32 of the Registration Act, every
document to be registered under the Registration Act shall be
presented at the proper registration office by some person
executing or claiming under the same, or, by the agent of such a C
person, representative or assign, duly authorised by PoA
executed and authenticated in the manner mentioned in Section
33(1)(c) of the Registration Act. Section 33 of the Registration
Act provides that for the purposes of Section 32, only those power
of attorneys shall be recognised as are mentioned in Section D
33(1). As per Section 33(1)(c) of the Act, if the principal at the
time of execution of the PoA does not reside in India, a PoA
executed before and authenticated by a Notary Public, or any
Court, Judge, Magistrate, Indian Consul or Vice-Consul, or
representative of the Central Government shall be valid. In the
instant case, the requirement of Section 33(1)(c) of the Act has E
not been satisfied at all. Section 32 of the Act is to be read along
with Section 33(1)(c) of the Registration Act. Only in a case where
the execution of the PoA is as per Section 32 read with Section
33(1)(c) of the Act, there shall be statutory presumption under
Section 60 and/or under the provisions of the Registration Act. F
Therefore, the High Court committed a grave error in drawing
the statutory presumption in favour of the plaintiffs and more
particularly with respect to alleged PoA alleged to have been
executed by the original owner in favour of plaintiff No.2. As such,
there were concurrent findings recorded by both the courts below
on non-compliance and/or non-fulfilling the conditions mentioned G
in Section 33(1)(c) of the Registration Act. By drawing the
statutory presumption and without properly appreciating and/or
considering the fact that there is a non-compliance of Section
33(1)(c) of the Registration Act there cannot be any statutory
H
142 SUPREME COURT REPORTS [2023] 4 S.C.R.
A presumption, the High Court has set aside the concurrent
findings recorded by both the courts below, in exercise of powers
under Section 100 CPC. [Para 7][160-F-H; 161-A-D]
1.3 Even the conduct on the part of the plaintiffs, more
particularly on the part of plaintiff No.2, executing the second
B sale deed in favour of plaintiff No.1-his own wife as a PoA of
original land owner deserves serious consideration. Even
according to the plaintiffs, on the basis of the PoA alleged to have
been executed by the original land owner, plaintiff No.2 executed
the registered sale deed in his own favour dated 3.9.1968. If that
C be so, in that case, there was no reason for him to execute the
subsequent sale deed in favour of plaintiff No.1-his own wife as a
PoA of the original land owner. Once he became the owner on
the basis of a registered sale deed dated 3.9.1968, which was
executed by him in his own name as a PoA of the original owner,
he could have executed the sale deed in favour of plaintiff No.1
D as the owner and not as a PoA of the original owner. [Para 8][161-
E-G]
1.4 Another conduct on the part of the plaintiffs submitting
the application to amend the plaint under Order 6 Rule 17 CPC
submitted before the first appellate court also creates doubts
E about the genuinity of the PoA. It was never the case on behalf of
the plaintiffs before the trial court and in the suit that the PoA
was handed over by the plaintiffs to original defendant No.1 and
that despite his demands he never returned the same. Having
found and realised that the non-production of the PoA had gone
F against them, subsequently, before the first appellate court, the
plaintiffs sought to make out a case that the PoA was handed
over by plaintiff No.2 to original defendant No.1 and that despite
his demands, never returned the same. The amendment sought
under Order 6 Rule 17 CPC was rightly refused by the first
appellate court. The plaintiffs tried to make out altogether a new
G
case which was not even the case of the plaintiffs earlier. This
conduct on the part of the plaintiffs also deserves serious
consideration and it creates serious doubts on the genuinity of
the PoA. In that view of the matter, the High Court committed a
serious error in drawing a statutory presumption as to the
H
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 143
(DEAD) THROUGH LRS. & OTHERS
authenticity of the sale deeds. There may be a statutory A
presumption as per Section 60 of the Registration Act where all
other requirements of execution of the sale deed, required to be
complied with under the Registration Act and the genuineness
of the PoA on the basis of which the sale deed was executed is
not doubted. [Para 9][161-G-H; 162-A-D] B
1.5 As the PoA is not produced on record; the executant of
the PoA in favour of plaintiff No.2 has not stepped into the witness
box; there is a non-compliance of Section 33(1)(c) of the
Registration Act; and the plaintiff no.2 is claiming title on the
basis of the PoA alleged to have been executed by the original C
owner which is not forthcoming and that plaintiff no.1 is claiming
the title on the basis of the sale deed dated 29.09.1968 executed
by plaintiff No.2 as a PoA holder of the original owner which is
not forthcoming, the trial court was justified and right in dismissing
the suit and refusing to pass a decree for a declaration of title in
D
favour of the plaintiffs. The same was rightly confirmed by the
first appellate court. The High Court committed a serious error
in decreeing the suit. The impugned judgment and order of the
High Court is unsustainable both, on law as well as on facts. The
impugned judgment and order passed by the High Court
decreeing the suit is hereby quashed and set aside and the E
judgment and decree passed by the trial court, confirmed by the
first appellate Court, is restored. [Paras 10, 11][162-D-H]
Prem Singh and others v. Birbal and others, (2006) 5
SCC 353 : [2006] 1 Suppl. SCR 692; H. Siddiqui v. A.
Ramalingam (2011) 4 SCC 240 : [2011] 5 SCR 587; F
Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558 : [2006]
1 Suppl. SCR 659; Sebastio Luis Fernandes v. K.V.P.
Shastri (2013) 15 SCC 161 : [2013] 11 SCR 1076; J.
Yashoda v. K. Shobha Rani (2007) 5 SCC 730 : [2007]
5 SCR 367; Rajni Tandon v. Dulal Ranjan Ghosh G
Dastidar (2009) 14 SCC 782 : [2009] 11 SCR 686;
Amar Nath v. Gian Chand 2022 SCC OnLine SC 102
– referred to.
H
144 SUPREME COURT REPORTS [2023] 4 S.C.R.
A Case Law Reference
[2006] 1 Suppl. SCR 692 referred to Para 3.3
[2011] 5 SCR 587 referred to Para 3.7
[2006] 1 Suppl. SCR 659 referred to Para 3.9
B [2013] 11 SCR 1076 referred to Para 3.9
[2007] 5 SCR 367 referred to Para 3.10
[2009] 11 SCR 686 referred to Para 3.12
Per B.V. NAGARATHNA, J. (Dissenting)
C
2.1 In the instant case, what is sought to be proved is title
by the sale deed and not the power of attorney as it is the sale
deed which conveys title and the sale deed has been executed in
accordance with the provisions of Registration Act, 1908, and
proved in accordance with Section 67 of Evidence Act. It cannot
D be held that the sale made on behalf of the seller (original owner
of the suit land) to the buyer through the power of attorney is
vitiated as the power of attorney was not produced before the
Court. This is because even in the absence of the production of
the power of attorney, the contents of the sale deed and the
execution of the power of attorney as well as the sale deed have
E been established by proving the sale deed in accordance with
the law. [Para 18][177-H; 178-A-B]
2.2 On a conjoint reading of the two documents, namely
sale deeds, it is established that the initial sale deed dated 03rd
September, 1968 by plaintiff No.2 is as a power of attorney holder
F of the orignal owner, to himself as a buyer. The power of attorney
is dated 01st August, 1968, the details of which are referred to in
the said sale deed inasmuch as the power of attorney was executed
by the original owner before the Magistrate, East Pakistan, which
is evident on a reading of both the documents. Thereafter, plaintiff
G No.2 executed a sale deed dated 29th October, 1968 in favour of
the plaintiff No.1 as the absolute owner of the suit schedule
property. Therefore, there is compliance of Section 33(1)(c) of
the Registration Act, 1908 inasmuch as the power of attorney
has been executed before the Magistrate, East Pakistan. [Para
21][180-B-D]
H
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 145
(DEAD) THROUGH LRS. & OTHERS
2.3 As per Section 18 of the Registration Act, registration A
of deed of attorney is optional. Further, Section 32 deals with the
categories of persons who can present documents for registration.
The following three categories of persons are mentioned therein:
(a) by some person executing or claiming under the same, or, in
the case of a copy of a decree or order, claiming under the decree B
or order, or (b) by the representative or assign of such a person,
or (c) by the agent of such a person, representative or assign,
duly authorised by power-of- attorney executed and authenticated
in manner mentioned therein. Therefore, it is evident that plaintiff
no. 2, had the authority as per Section 32 (c) to present a document
for registration in his capacity as the attorney of the original owner C
of the suit property. [Para 22][180-E-H]
2.4 Non-production of the power of attorney in the suit is
also not fatal to the case of the plaintiffs. Production of the original
power of attorney is not an indispensable requirement to establish
the validity of execution of a sale deed. It would therefore follow D
that production of a power of attorney is not a necessary
requirement to prove a sale deed before a court of law executed
through a power of attorney. [Para 23][181-A; 183-F]
2.5 Section 67 of the Evidence Act deals with proof of
documents such as a sale deed as in the instant case. The plaintiff E
No.1 has proved her right, title and interest in the land in question.
There is no contra evidence produced by the defendants so as to
defeat the validity of the sale deeds. The said documents speak
for themselves. Therefore, there is no substance in the
contentions of the appellants arising under the provisions of the F
Registration Act, 1908. Thus, plaintiff No.1 has acquired title to
the land in question. Further, when a sale deed is executed on
the strength of deed of power of attorney, the non-production of
thedeed of power of attorney in the suit is not fatal to the case of
the plaintiff. [Para 24][183-G; 184-B-C]
G
2.6 The sale deed dated 03rd September, 1968 was
executed on the strength of the power of attorney which was
executed in conformity with Section 33 (1) (c) of the Registration
Act, 1908 because the power of attorney has been duly executed
H
146 SUPREME COURT REPORTS [2023] 4 S.C.R.
A before the Magistrate, East Pakistan as noted from the two sale
deeds. There is no contra evidence produced by defendants in
that regard. Since the requirements of execution of a sale deed
are duly complied with, and there is no reason to doubt the recitals
of the sale deed which has been proved in accordance with law, it
B would follow that the statutory presumption under Section 60 of
the Registration Act could be invoked in the instant case. [Para
25][184-D-F]
2.7 It is trite that registration of a document is a solemn act
of parties and the recitals of a registered document are presumed
C to be valid unless such a presumption is rebutted by strong
evidence to the contrary. This is because, the document speaks
for itself. [Para 26][184-F-G]
2.8 A registered document carries with it, by virtue of it
being registered, the presumption as to the authority of the person
executing it. In the present case, the trial court and the First
D
Appellate Court failed to treat the endorsement made by the
District Sub-Registrar on the body of the sale deed, as evidence
in respect of the authority of Plaintiff No. 2 to execute the sale
deed. This is to be considered in light of the fact that at no point
of time did the original owner dispute the execution of power of
E attorney in favour of Plaintiff No. 2. [Para 28][185-G-H]
2.9 Prima-facie, the endorsement made on the sale deed
dated 03rd September, 1968, could be considered as
determinative evidence of the conveyance of title to the suit
property by its original owner, especially where the defendants
F have not set up a case to establish any independent title over the
suit property. When such a presumption arises, the onus would
be on a person who challenges such presumption, to successfully
rebut it. As regards, the issue whether, the defendants have
rebutted the presumption of validity of the sale deed dated 03rd
G September, 1968, the trial court and first appellate court have
concurrently found that the defendants do not have any title over
the suit land and against such finding the defendants have not
preferred an appeal. They have thus accepted this finding which
has attained finality. The original owner has not initiated any
H
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 147
(DEAD) THROUGH LRS. & OTHERS
proceeding to dispute the execution of power of attorney in favour A
of plaintiff No. 2. The order of the Munsiff records that by way of
a sale deed dated 03rd September, 1968, plaintiff No. 2 had
purchased the suit property and was paying municipal taxes as
the owner of the premises which finding is binding on the parties
herein as the same has not been upset by any Court of law. Original
B
defendant No. 1 in the present suit, was the plaintiff therein.
Notwithstanding the fact that the original defendant had become
aware of the sale deed dated 03rd September, 1968 and of the
power of attorney that formed the basis of such sale deed, no
steps were taken by the defendant to challenge plaintiff No. 2’s
title over the suit property. It was only in the written statement C
filed in the present suit that it was vaguely claimed that original
defendant no.1 was the title holder of the suit property and plaintiff
No. 2 was a tenant therein. This, without there being any legal
basis or evidence. In light of the said facts, it can be stated that
the defendant has not rebutted the presumption of validity of the
D
sale deed dated 03rd September, 1968. [Para 29][186-A-H; 187-
A]
2.10 There is no reason to disbelieve the recitals contained
in the registered sale deed dated 03rd September, 1968 merely
on the ground that the document conferring power of attorney in
favour of plaintiff no. 2 was not produced before the trial court. In E
the instant case, the High Court was therefore right in holding
that when a document has been duly registered, there is a
presumption of correctness and it can be rebutted only by strong
evidence to the contrary. But the defendants have not led any
evidence in order to rebut the presumption as might be drawn F
on the basis of the said endorsement on the body of the sale
deed dated 03.09.1968 accepting original plaintiff no.2 as the
attorney of the original owner. The same is a vital piece of evidence
which has been ignored by the trial court as well as the first
appellate court. The High Court is further right in holding that
original plaintiff no.2 was duly nominated and constituted as the G
attorney of original owner of the suit land and on the strength of
the said power of attorney, plaintiff No.2 transferred land in favour
of himself. As the absolute owner, plaintiff No.2 sold the said land
to plaintiff No.1. Thus, plaintiff no.1 had every right to recover
the said suit land, description of which has been provided in the H
148 SUPREME COURT REPORTS [2023] 4 S.C.R.
A Schedule (C) of the plaint by removing and demolishing all
obstructions fromthe defendants. The High Court was therefore
right in decreeing the suit. [Para 30][187-B-E]
Amar Nath vs. Gian Chand and Anr. 2022 SCC OnLine
SC 102; Rattan Singh and Ors. vs. Nirmal Gill and Ors.
B AIR 2021 SC 899 – relied on.
Suraj Lamp and Industries vs. State of Haryana (2012)
1 SCC 656 : [2011] 11 SCR 848; Atal Chakrajvarty
vs. Sudhi Gopal Pandey (1969) 73 CWN 947; Ishwar
Dass Jain vs. Sohan Lal (2000) 1 SCC 434 : [1999] 5
C Suppl. SCR 24; Chottey Lal vs. The Collector of
Moradabad A.I.R. 1922 PC 279; Prem Singh and Ors.
vs. Birbal and Ors. (2006) 5 SCC 353 : [2006] 1 Suppl.
SCR 692 – referred to.
Case Law Reference
D [2011] 11 SCR 848 referred to Para 18
A.I.R. 1922 PC 279 referred to Para 18 (i), 26
[1999] 5 Suppl. SCR 24 referred to Para 26
AIR 2021 SC 899 relied on Para 27
E
[2006] 1 Suppl. SCR 692 referred to Para 29
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2965
of 2022.
From the Judgment and Order dated 05.04.2018 of the High Court
F of Tripura, Agartala in R.S.A. No. 01 of 2005.
Rana Mukherjee, Sr. Adv., Pijush K. Roy, Mrs. Kakali Roy, Rajan
K. Chourasia, Advs. for the Appellants.
Hrishikesh Baruah, Ms. Radhika Gupta, Advs. for the
Respondents.
G
The Judgments of the Court were delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 05.04.2018 passed by the High Court of Tripura at
H
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 149
(DEAD) THROUGH LRS. & OTHERS [M. R. SHAH, J.]
Agartala in Regular Second Appeal No. 01/2005, by which the High A
Court has allowed the said appeal preferred by the original plaintiffs and
has decreed the suit by quashing and setting aside the concurrent findings
recorded by both the courts below, the original defendants have preferred
the present appeal.
2. The facts leading to the present appeal in a nutshell are as B
under:
That one Braja Mohan Dey was the owner and in possession of
‘Schedule A’ property. He was alleged to have taken a loan of Rs. 10,000/
- from his tenant, namely, Dhirendra Chandra Saha, original plaintiff
No.2. The original owner, Braja Mohan Dey went to East Pakistan. It C
was alleged that he had executed a Power of Attorney (PoA) in East
Pakistan, ostensibly in favour of original plaintiff No.2 to enable
repayment of the alleged loan amount by sale of the subject land to
himself (original plaintiff No.2) as his PoA holder. That original plaintiff
No.2, on the basis of the alleged loan amount and PoA alleged to have
been executed by the original owner, executed in his favour sale deed D
dated 3.9.1968 as PoA holder of the original owner. Thereafter original
plaintiff No.2, by virtue of the said PoA, transferred ‘Schedule A’ property
to his wife Gita Rani Saha (original plaintiff No.1) (now deceased) vide
sale deed dated 29.09.1968, allegedly for repayment of a sum of Rs.
20,000/- taken by him from his wife, out of which a sum of Rs. 10,000/ E
- was alleged to have been handed over to the original owner Braja
Mohan Dey.
2.1 That original plaintiff No.2 allegedly constructed a godown at
the rear end of the grocery shop in another part of ‘Schedule A’ property
(‘Schedule C’ property). It was the case on behalf of the plaintiffs that F
one Sarat Chandra Majumdar (original defendant No.1) tried to dispossess
the plaintiffs from the said ‘Schedule C’ property. However, on the other
hand, it was the case on behalf of the defendants that their predecessor-
in-interest held out that Sarat Chandra Majumdar was in possession of
the suit land for more than thirty years and was running a business from
the said property, while denying that the plaintiffs had acquired any right, G
title or interest as claimed over the suit land. The original defendants
also claimed to be in peaceful possession of the property for over forty
years and it was their case that they were paying the municipal taxes
and land revenue and other statutory dues. The plaintiffs alleged that the
defendants had started a pucca construction on ‘Schedule C’ property H
150 SUPREME COURT REPORTS [2023] 4 S.C.R.
A and forcibly dispossessed them from the said property. Therefore, the
plaintiffs filed a Civil Suit being T.S. No. 201/1985 before the learned
trial Court for a declaration of title over the suit land and recovery of
khas possession from the defendants (appellants herein).
2.2 The said suit was resisted by the defendants by filing a written
B statement denying all the allegations as well as their right of possession
in respect of the disputed suit property. At this stage, it is required to be
noted that though the original plaintiff No.2 claimed the ownership on
the basis of the sale deed dated 3.9.1968 executed by plaintiff No.1 in
his own favour on the basis of the alleged PoA executed by the original
owner, however, the same was not produced before the learned trial
C Court and in the suit.
2.3 The learned trial Court vide its judgment and decree dated
11.09.1995 dismissed the suit and held that the plaintiffs were not entitled
to relief sought as no right, title or interest was established in favour of
plaintiff No.2, inter alia, for want of PoA for proper execution of the
D sale deed in his favour. At this stage, it is required to be noted that issue
No.6 was, “have the plaintiffs proved their alleged right, title and interest
in the suit land?”. The learned trial Court also held that the sale deeds in
favour of plaintiff No.2 and plaintiff No.1 respectively did not have the
endorsements of the Sub-Registrar that it was executed by the PoA of
E Braja Mohan Dey (original owner) and further that even in an earlier
suit between plaintiff No.2 and Sarat Chandra Majumdar, the said PoA
was not produced. The learned trial Judge also came to the conclusion
that the provisions of Section 33(1)(c) of the Registration Act, 1908
have not been complied with, when according to the plaintiffs the alleged
PoA was executed at Kumilla, East Pakistan, now Bangladesh, which is
F a foreign country.
2.4 Feeling aggrieved and dissatisfied with the judgment and decree
passed by the learned trial Court dismissing the suit, the original plaintiffs
preferred an appeal before the first appellate Court. In the appeal before
the first appellate Court, the plaintiffs filed an application under Order 6
G Rule 17 CPC for amendment of the plaint in T.S. No. 201/1985. The
amendment sought for was to the effect that the missing PoA, i.e., the
fulcrum of the case was allegedly handed over by the plaintiffs to original
defendant No.1 and that despite demands, he never returned the same.
Vide order dated 31.01.1998, the first appellate Court rejected the prayer
H for amendment of the plaint by observing that allowing the amendment
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 151
(DEAD) THROUGH LRS. & OTHERS [M. R. SHAH, J.]
at that stage would mean a remand of the suit for fresh trial. That after A
framing the points for consideration, the first appellate Court dismissed
the appeal and confirmed the judgment and decree passed by the learned
trial Court dismissing the suit. The first appellate Court also found that
though plaintiff No.2 had acquired title over the suit land on the basis of
the sale deed executed by him in his favour on the basis of the PoA
B
alleged to have been executed by its true owner Braja Mohan Dey, but
failed to produce the same before the Court and as such in the absence
of PoA, genuinity of the sale deed dated 3.9.1968 cannot be presumed
to be correct and on the basis of that sale deed, subsequent sale deed
dated 29.09.1968 in favour of plaintiff No.1 by plaintiff No.2 also cannot
be treated as genuine. C
2.5 Feeling aggrieved and dissatisfied with the judgment and order
passed by the first appellate Court dismissing the appeal and confirming
the judgment and decree passed by the learned trial Court dismissing the
suit, the plaintiffs preferred the second appeal before the High Court
under Section 100 CPC. D
2.6 In the Second Appeal, the High Court, while admitting the
appeal, framed the following substantial question of law:
“Whether a sale deed executed by the attorney of the vendor can
be challenged by a third party only on the ground that the attorney
executive in the deed was not duly authorised by a power of E
attorney.”
Subsequently, the High Court reframed the following substantial
questions of law:
“1) Whether the endorsement made on the sale deed No.1-10394 F
dated 3.9.1968 [Exbt.11] in respect of the power of attorney is
substantive evidence in respect of the power of attorney authorising
the plaintiff No.2 to sell the said land as demised in the sale deed
dated 3.9.1968?
2. Whether the defendants had fundamental onus to discharge in
G
respect that the power of attorney was not in existence or forged
and as such, the sale deed dated 3.9.68 cannot be treated as the
instrument of a valid transfer?”
2.7 By the impugned judgment and order, the High Court has
allowed the second appeal No. 01/2005 by setting aside the concurrent
H
152 SUPREME COURT REPORTS [2023] 4 S.C.R.
A findings recorded by the courts below by drawing a statutory presumption
in respect of existence of PoA by virtue of endorsement. While holding
so, the High Court has considered Section 33(1)(c) of the Registration
Act. Consequently, the High Court has decreed the suit and has directed
the appellants – original defendants to handover the vacant possession
of the suit land to the original plaintiffs.
B
2.8 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court allowing the second appeal and
quashing and setting aside the judgments and orders of the courts below
dismissing the suit and consequently decreeing the suit in favour of the
original plaintiffs, the original defendants have preferred the present
C appeal.
3. Shri Rana Mukherjee, learned Senior Advocate has appeared
on behalf of the appellants – original defendants and Shri Hrishikesh
Baruah, learned Advocate has appeared on behalf of the original plaintiffs.
D 3.1 Learned counsel appearing on behalf of the appellants – original
defendants has vehemently submitted that the High Court has committed
a serious error in law by setting aside the concurrent findings of the
courts below in the second appeal. This is particularly when both the
courts below concurrently found that plaintiff No.2 is alleged to have
acquired title over the suit land on the basis of the sale deed dated 3.9.1968
E executed by him in his own favour on the basis of the PoA executed by
its true owner Braja Mohan Dey, but failed to produce the same before
the Court and as such in the absence of PoA, genuinity of the sale deed
dated 3.9.1968 cannot be presumed to be correct. Further, on the basis
of the sale deed dated 3.9.1968, subsequent sale deed dated 29.09.1968
F in favour of plaintiff No.1 by plaintiff No.2 also cannot be treated as
genuine. Therefore, the very execution of the sale deed dated 3.9.1968
is doubtful and it cannot be said that the same has been executed validly.
3.2 It is further submitted that the High Court, while drawing a
statutory presumption, has failed to consider that when execution of the
G sale deed is doubtful and the cloud over the execution has not been
cleared, no statutory presumption could be drawn in respect of existence
or regularity of the PoA by virtue of an endorsement, when the PoA
which was allegedly executed in a foreign country could not be produced
and execution of the PoA has been done contrary to Section 33(1)(c) of
the Registration Act.
H
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 153
(DEAD) THROUGH LRS. & OTHERS [M. R. SHAH, J.]
3.3 It is submitted that the High Court has erroneously relied on A
the judgment of this Court in the case of Prem Singh and others v.
Birbal and others, (2006) 5 SCC 353. Relying upon the aforesaid
decision, the High Court has seriously erred in holding that there is a
presumption that “a registered document is validly executed”.
3.4 It is further submitted that despite the original plaintiffs having B
sale deeds in their favour, plaintiff No.1 sought a declaration of the title.
It is submitted that assuming that the plaintiffs were dispossessed from
‘Schedule C’ property of which relief was claimed, then an application/
proceeding under Section 6 of the Specific Relief Act could have also
been filed, which was not done because the plaintiffs in the suit knew
C
that there was a cloud in their title to the suit land.
3.5 It is urged that even the original owner of the land, Braja
Mohan Dey, who was alleged to have executed the missing PoA, was
never made a party to the suit. He was neither a party to the suit nor
was examined as one of the witnesses by the trial Court in support of
D
the case of the plaintiffs. It is submitted that even the sale deeds executed
by virtue of the said PoA were not proved by examining the registering
authorities or by production of documents registering such sale.
3.6 Now so far as the effect of Section 33(1)(c) of the Registration
Act, it is submitted that insofar as the PoA was concerned, no evidence
was led to the effect that the same was in compliance of the provisions E
of Section 33(1)(c) of the Registration Act. It is urged that as such the
trial Court has observed that the plaintiffs had not produced the PoA
before the Court and there was no explanation/averment made in the
plaint for such non-production. It is submitted that even the subsequent
conduct/attempt on the part of the plaintiffs seeking amendment of the F
plaint before the first appellate Court deserves consideration. It is
submitted that having found that non-production of the PoA by the
plaintiffs would come in their way, and in fact had gone against them,
the plaintiffs tried to make out altogether a new case by averring that
the copy of the PoA was handed over to original defendant No.1 and
G
despite several requests, he never returned the same. It is submitted
that the same was never the case of the plaintiffs when the suit was
filed and there was no such amendment prayed in the plaint.
3.7 Learned counsel appearing on behalf of the appellants has
heavily relied upon the decision of this Court in the case of H. Siddiqui
H
154 SUPREME COURT REPORTS [2023] 4 S.C.R.
A v. A. Ramalingam (2011) 4 SCC 240 (paras 13 & 15) in support of
his submission that once the issue of alleged PoA was raised, the High
Court ought not to have decided the second issue framed by it in that
case without deciding on the first issue, i.e., that of impact of non-
production of the PoA and its existence thereof. It is submitted that in
the present case, the High Court ought to have decided the issue of non-
B
production of PoA by the plaintiffs in the first instance and then would
have drawn the statutory presumption.
3.8 It is further submitted that in the present case, the learned trial
Court also specifically observed that no endorsement was made by the
Sub-Registrar on the documents in compliance with Section 26 and
C Section 58 of the Registration Act. It is contended that it was neither
stated in the deed that the plaintiff has the PoA by which he was
empowered to execute the deed in his favour nor was an averment
made in the plaint to that effect. It is submitted that the evidence produced
by the plaintiffs, i.e., two sale deeds dated 3.9.1968 and 29.9.1968 based
D on the purported PoA, has not been proved by production of official
records or through the Registrar being examined as a witness. It is urged
that the PoA is the fulcrum of the case on which the plaintiffs were
claiming their rights, the plaintiffs never produced in any form. It is further
urged that it was incumbent on the part of the plaintiffs to produce PoA
as the plaintiffs in the suit were having their rights, title or interest through
E the PoA which is the basic document.
3.9 Learned counsel appearing on behalf of the appellants has
further submitted that Sections 101 to 103 of the Indian Evidence Act
provides that a party who avers the title must prove the title and that
such a party is not relieved of the onus. It is submitted that in the present
F case even the plaintiffs had not discharged their initial burden of proving
the title. Reliance is placed upon the decision of this Court in the cases
of Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558; and Sebastio
Luis Fernandes v. K.V.P. Shastri (2013) 15 SCC 161.
3.10 It is further submitted that Section 65 of the Indian Evidence
G Act provides for circumstances under which secondary evidence may
be given without filing primary evidence. It is submitted that in the present
case the plaintiffs have failed to prove the primary evidence, i.e., PoA
on the basis of which the secondary evidence, i.e., the sale deeds were
executed. Reliance is placed on the decision of this Court in the case of
H J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730. It is submitted that
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 155
(DEAD) THROUGH LRS. & OTHERS [M. R. SHAH, J.]
therefore in the absence of the principal evidence (PoA), the significance A
of the two sale deeds, produced by the plaintiffs is diluted.
3.11 It is further contended that in the impugned judgment and
order, the High Court while holding against the appellants and upsetting
the concurrent findings of the courts below, inter alia, has held that
there was a statutory presumption in favour of the plaintiffs insofar as B
the PoA is concerned. It is submitted that the said finding is erroneous
inasmuch as the statutory presumption would not be available to the
plaintiffs and the documents in question since the document (PoA) itself
has not been produced before the courts below to ascertain whether the
document was in order or in compliance of Section 33(1)(c) of the
Registration Act. C
3.12 Learned counsel appearing on behalf of the appellants has
also relied upon the decisions of this Court in the case of Rajni Tandon
v. Dulal Ranjan Ghosh Dastidar (2009) 14 SCC 782; and recent
decision of this Court in the case of Amar Nath v. Gian Chand 2022
SCC OnLine SC 102, in support of his submission on Section 33 (1)(c) D
of the Registration Act.
3.13 Making the above submissions and relying upon the aforesaid
decisions, it is vehemently submitted that the High Court has erred in
allowing the second appeal and quashing and setting aside the concurrent
findings of the courts below and thereby decreeing the suit while E
exercising the power under Section 100 CPC. Therefore, it is prayed to
allow the present appeal and set aside the impugned judgment and order
passed by the High Court and restore the judgment and decree passed
by the learned trial Court.
4. The present appeal is opposed by Shri Hrishikesh Baruah, F
learned counsel appearing on behalf of the respondents – original
plaintiffs.
4.1 It is vehemently submitted that the land which is in possession
of defendant No.1 is founded on the title of plaintiff No.1 based on the
sale deed dated 3.9.1968 which has been executed on the basis of the G
PoA in favour of plaintiff No.2. It is submitted that therefore the defendants
are not entitled in law as well as in equity to raise a dispute about the
existence of the same.
4.2 It is submitted that as such the original defendants tried to
take forceful possession of ‘Schedule C’ property by breaking the godown H
156 SUPREME COURT REPORTS [2023] 4 S.C.R.
A and taking away the goods. Plaintiff No.2 informed the concerned police
station and thereafter made a prayer before the Court of the SDM,
Sardar for drawing up proceedings under Section 144 Cr.P.C. On a police
enquiry report, proceedings under Section 144 Cr.P.C. were started.
During the proceedings, a prohibitory order was passed. The defendants
entered the possession of ’Schedule C’ property. It is submitted that, in
B
fact, the learned Executive Magistrate directed the defendants to vacate
the ‘Schedule C’ property/land and handover the same to the plaintiffs.
However, in the revision petition filed by the defendants, the learned
revisional Court set aside the same on technical grounds. The plaintiffs
approached the High Court by way of revision petition. The High Court
C disposed of the case by directing that the plaintiffs can initiate a fresh
case under Section 145 Cr.P.C. regarding the ‘Schedule C’ property. It
is submitted that thereafter the plaintiffs filed a petition under Section
145 Cr.P.C. However, on 27.09.1985, as the defendants started
construction of a pucca structure on ‘Schedule C’ property, the plaintiffs
were constrained to file the suit.
D
4.3 It is submitted that as such the High Court has rightly drawn
the statutory presumption in favour of the plaintiffs. It is submitted that
as observed and held by the High Court, the defendants have not led any
evidence to rebut the presumption. It is submitted that as there was an
endorsement in the sale deed and that it is a vital piece of evidence, the
E High Court has not committed any error in drawing the statutory
presumption.
4.4 It is further submitted that Part VI of the Registration Act
deals with presenting documents for registration. Section 32 contemplates
that only those persons mentioned in clause (c) are entitled to present
F documents for registration. In case the PoA holder himself executes the
sale deed, then for the purpose of registration he is considered to be a
person falling under Section 32(a) of the Registration Act. He is not
even required to produce the PoA (although in the present case the PoA
was produced and the requisite endorsement was made). It is submitted
G that sub-clause (c) contemplates presentation of a document for
registration by a PoA holder. It is submitted that Section 33 further
provides as to which PoA holders will be recognised for the purpose of
Section 32. Sub-clause (c) provides for a case where the principal is not
residing in India. It is submitted that in that case, the PoA executed has
to be authenticated by the concerned persons mentioned therein. Further,
H
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 157
(DEAD) THROUGH LRS. & OTHERS [M. R. SHAH, J.]
the plaintiffs have proved execution of the PoA by the original owner by A
examining PW1. It is contended therefore there is no dispute that the
steps mentioned in Section 33(1)(c) of the Registration Act were complied
with.
4.5 It is further submitted that Section 34 of the Registration Act
contemplates an enquiry which relates to various aspects mentioned in B
sub-clause (3) including (i) enquiring into the fact as to whether such
document was executed by the persons by whom it purports to have
been executed; (ii) satisfying himself as to the identity of the persons
appearing before him; and (iii) in case of any person appearing as a
representative assign or agent satisfying himself as to the right of such
person so to appear. That on completion of enquiry as contemplated C
under the Registration Act, the registering authority may direct registration
and issuance of a certificate in terms of Section 60(1) and 60(2) of the
Act. Therefore by virtue of Section 60(2) of the Registration Act, there
is a statutory presumption which arises to the effect that the document
has been registered in the manner provided by the Act, which means D
that it has been registered after due compliance of the enquiry
contemplated under Section 33(1) (c) and 36 of the Registration Act.
4.6 It is submitted that in the present case plaintiff No.2 had
executed the first sale deed dated 3.9.1968 which is a registered document.
That on the foundation of the said sale deed, the second sale deed dated E
29.09.1968 had been executed in favour of plaintiff No.1 and therefore
the owner of the property is plaintiff No.1. It is contended that on the
foundation of the aforesaid registered document, the title has to flow.
Otherwise, it would lead to a situation wherein a registered document
will have no effect. That in the present case there is no challenge to the
sale deeds. Therefore, the legal effect of the execution of the sale deeds F
has been proved.
4.7 It is submitted that the defendants are asking for production
of a PoA which was used by the predecessor-in-interest of plaintiff
No.1 to execute the sale deed in his favour. This burden to provide the
PoA on the foundation of which the first sale deed was executed is an G
onerous burden and not contemplated in law. That as such the defendants
are nothing but rank tress-passers. They have never set up their title in
the property. They have never asserted that they have obtained possessory
right from a person with title. Therefore, they have no right to challenge
the title of plaintiff No.1. H
158 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 4.8 Relying upon the recent decision of this Court in the case of
Amar Nath (supra), it is submitted that as observed and held by this
Court that when a PoA holder executes the sale deed, he executes in
terms of Section 32(a) of the Registration Act and therefore he does not
need to produce the PoA. Only when the PoA holder executes a further
PoA, then only the second PoA holder will have to produce the PoA
B
between him and the first PoA and not otherwise.
4.9 Making the above submissions and relying upon the above
decision, it is prayed to dismiss the present appeal.
5. I have heard learned counsel for the respective parties at length.
C At the outset, it is required to be noted that in the present case,
the plaintiffs instituted the suit for declaration of title, to which they were
laying claim by virtue of the two sale deeds, one dated 3.9.1968 (executed
by plaintiff No.2 in his favour on the basis of the alleged PoA alleged to
have been executed by the original land owner – Braja Mohan Dey) and
D the second sale deed dated 29.09.1968 (executed by plaintiff No.2 in
favour of plaintiff No.1 as a PoA holder of the original owner). Both, the
learned trial Court as well as the first appellate Court held that the
plaintiffs have failed to prove their title as the PoA on the basis of which
plaintiff No.2 claimed the right/title is not forthcoming and/or not produced
before the Court. Therefore, both, the learned trial Court as well as the
E first appellate Court held that the requirement of Section 33(1)(c) of the
Registration Act has not been satisfied. However, by drawing the
statutory presumption under Section 60 of the Registration Act, the High
Court has believed the sale deeds dated 3.9.1968 and 29.09.1968 and
has held that the plaintiffs have proved their title. But, by the impugned
F judgment and order and drawing the statutory presumption, the High
Court while exercising the powers under Section 100 CPC, has set aside
the concurrent findings recorded by the courts below.
6. When the plaintiffs claimed title on the basis of the aforesaid
two sale deeds dated 2.9.1968 and 29.09.1968, it was for the plaintiffs to
G prove even the execution of the sale deeds. The defendants were not
required to challenge the sale deeds in the suit filed by the plaintiffs, who
prayed for a decree for a declaration of title in their favour. When plaintiff
No.2 claimed title on the basis of the PoA executed by the original owner
and thereafter executed the sale deed in favour of plaintiff No.1 as PoA
of the original owner, the conditions provided under Section 33(1)(c) of
H
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 159
(DEAD) THROUGH LRS. & OTHERS [M. R. SHAH, J.]
the Registration Act are required to be strictly complied with. Sections A
32 and 33 of the Registration Act, which are relevant for our purpose,
read as under:
“32. Persons to present documents for registration.—Except
in the cases mentioned in 33[Sections 31, 88 and 89], every
document to be registered under this Act, whether such registration B
be compulsory or optional, shall be presented at the proper
registration office,—
(a) by some person executing or claiming under the same, or in
the case of a copy of a decree or order, claiming under the decree
or order, or C
(b) by the representative or assign of such person, or
(c) by the agent of such person, representative or assign, duly
authorized by power-of-attorney executed and authenticated in
manner hereinafter mentioned.
D
33. Power-of-attorney recognizable for purposes of Section
32.—(1) For the purposes of Section 32, the following powers-
of-attorney shall alone be recognized, namely—
(a) if the principal at the time of executing the power-of-attorney
resides in any part of 35[India] in which this Act is for the time E
being in force, a power-of-attorney executed before and
authenticated by the Registrar or Sub-Registrar within whose
district or sub-district the principal resides;
(b) if the principal at the time aforesaid resides in any part of
India in which this Act is not in force, a power-of-attorney F
executed before and authenticated by any Magistrate;
(c) if the principal at the time aforesaid does not reside
in 37[India], a power-of attorney executed before and
authenticated by a Notary Public, or any Court, Judge,
Magistrate, Indian Consul or Vice-Consul, or representative of G
the Central Government:
Provided that the following persons shall not be required to attend
at any registration-office or Court for the purpose of executing
any such power-of-attorney as is mentioned in clauses (a) and
(b) of this Section, namely—
H
160 SUPREME COURT REPORTS [2023] 4 S.C.R.
A (i) persons who by reason of bodily infirmity are unable without
risk or serious inconvenience so to attend:
(ii) persons who are in jail under civil or criminal process; and
(iii) persons exempt by law from personal appearance in the
Court.
B
[Explanation.—In this sub-section, “India” means India, as
defined in clause (28) of Section 3 of the General Clauses Act,
1897 (10 of 1897)].
(2) In the case of every such person the Registrar or Sub-Registrar
C or Magistrate, as the case may be, if satisfied that the power-of-
attorney has been voluntarily executed by the person purporting
to be the principal, may attest the same without requiring his
personal attendance at the office or Court aforesaid.
(3) To obtain evidence as to the voluntary nature of the execution,
D the Registrar or Sub-Registrar or Magistrate may either himself
go to the house of the person purporting to be the principal, or to
the jail in which he is confined, and examine him, or issue a
commission for his examination.
(4) Any power-of-attorney mentioned in this section may be proved
E by the production of it without further proof when it purports on
the face of it to have been executed before and authenticated by
the person or Court hereinbefore mentioned in that behalf.”
7. According to the plaintiffs and it is not in dispute that the original
owner was residing in East Pakistan. According to the plaintiffs, the
F original land owner executed the PoA in favour of plaintiff No.2 at Kumilla,
Bangladesh. The original PoA is not produced on record. As per Section
32 of the Registration Act, every document to be registered under the
Registration Act shall be presented at the proper registration office by
some person executing or claiming under the same, or, by the agent of
such a person, representative or assign, duly authorised by PoA executed
G and authenticated in the manner mentioned in Section 33(1)(c) of the
Registration Act. Section 33 of the Registration Act provides that for the
purposes of Section 32, only those power of attorneys shall be recognised
as are mentioned in Section 33(1). As per Section 33(1)(c) of the Act, if
the principal at the time of execution of the PoA does not reside in India,
H a PoA executed before and authenticated by a Notary Public, or any
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 161
(DEAD) THROUGH LRS. & OTHERS [M. R. SHAH, J.]
Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative A
of the Central Government shall be valid. In the present case, as such,
the requirement of Section 33(1)(c) of the Act has not been satisfied at
all. Section 32 of the Act is to be read along with Section 33(1)(c) of the
Registration Act. Only in a case where the execution of the PoA is as
per Section 32 read with Section 33(1)(c) of the Act, there shall be
B
statutory presumption under Section 60 and/or under the provisions of
the Registration Act. Therefore, the High Court has committed a grave
error in drawing the statutory presumption in favour of the plaintiffs and
more particularly with respect to alleged PoA alleged to have been
executed by the original owner in favour of plaintiff No.2. As such,
there were concurrent findings recorded by both the courts below on C
non-compliance and/or non-fulfilling the conditions mentioned in Section
33(1)(c) of the Registration Act. By drawing the statutory presumption
and without properly appreciating and/or considering the fact that there
is a non-compliance of Section 33(1)(c) of the Registration Act there
cannot be any statutory presumption, the High Court has set aside the D
concurrent findings recorded by both the courts below, in exercise of
powers under Section 100 CPC.
8. Even the conduct on the part of the plaintiffs, more particularly
on the part of plaintiff No.2, executing the second sale deed in favour of
plaintiff No.1 – his own wife as a PoA of original land owner deserves
E
serious consideration. It is required to be noted and even according to
the plaintiffs, on the basis of the PoA alleged to have been executed by
the original land owner – Braja Mohan Dey, plaintiff No.2 executed the
registered sale deed in his own favour dated 3.9.1968. If that be so, in
that case, there was no reason for him to execute the subsequent sale
deed in favour of plaintiff No.1 – his own wife as a PoA of the original F
land owner. Once he became the owner on the basis of a registered sale
deed dated 3.9.1968, which was executed by him in his own name as a
PoA of the original owner, he could have executed the sale deed in
favour of plaintiff No.1 as the owner and not as a PoA of the original
owner. G
9. Even another conduct on the part of the plaintiffs submitting
the application to amend the plaint under Order 6 Rule 17 CPC submitted
before the first appellate Court also creates doubts about the genuinity
of the PoA. It was never the case on behalf of the plaintiffs before the
trial Court and in the suit that the PoA was handed over by the plaintiffs
H
162 SUPREME COURT REPORTS [2023] 4 S.C.R.
A to original defendant No.1 and that despite his demands he never returned
the same. Having found and realised that the non-production of the PoA
had gone against them, subsequently, before the first appellate Court,
the plaintiffs sought to make out a case that the PoA was handed over
by plaintiff No.2 to original defendant No.1 and that despite his demands,
never returned the same. The amendment sought under Order 6 Rule
B
17 CPC was rightly refused by the first appellate Court. The plaintiffs
tried to make out altogether a new case which was not even the case of
the plaintiffs earlier. This conduct on the part of the plaintiffs also deserves
serious consideration and it creates serious doubts on the genuinity of
the PoA. In that view of the matter, the High Court has committed a
C serious error in drawing a statutory presumption as to the authenticity of
the sale deeds. There may be a statutory presumption as per Section 60
of the Registration Act where all other requirements of execution of the
sale deed, required to be complied with under the Registration Act are
complied with and the genuineness of the PoA on the basis of which the
sale deed was executed is not doubted.
D
10. In view of the above and for the reasons stated above and as
the PoA is not produced on record; the executant of the PoA in favour
of plaintiff No.2 has not stepped into the witness box; there is a non-
compliance of Section 33(1)(c) of the Registration Act; and the plaintiff
no.2 is claiming title on the basis of the PoA alleged to have been
E executed by the original owner which is not forthcoming and that plaintiff
no.1 is claiming the title on the basis of the sale deed dated 29.09.1968
executed by plaintiff No.2 as a PoA holder of the original owner which
is not forthcoming, I am of the opinion that the learned trial Court was
justified and right in dismissing the suit and refusing to pass a decree for
F a declaration of title in favour of the plaintiffs. The same was rightly
confirmed by the first appellate Court. The High Court has committed a
serious error in decreeing the suit. The impugned judgment and order of
the High Court is unsustainable both, on law as well as on facts.
11. In view of the above and for the reasons stated above, the
G present Appeal Succeeds and is Allowed. The impugned judgment and
order passed by the High Court decreeing the suit is hereby quashed
and set aside and the judgment and decree passed by the trial Court,
confirmed by the first appellate Court, is hereby restored. However, in
the facts and circumstances of the case, there shall be no order as to
costs.
H
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 163
(DEAD) THROUGH LRS. & OTHERS
NAGARATHNA, J. A
I have had the advantage of reading the judgment proposed by
His Lordship M.R. Shah, J. However, I am unable to agree with the
reasoning as well as the result arrived at by His Lordship. Hence, my
separate judgment.
The defendants in Title Suit No. 201 of 1985 have assailed the B
judgment and decree dated 05th April, 2018, passed by the High Court of
Tripura in Regular Second Appeal No. 01 of 2005. By the impugned
judgment, the judgment and decree dated 26th August, 2004 passed in
Title Appeal No. 02 of 1996 by the First Appellate Court, i.e., the Court
of the District Judge, West Tripura, Agartala, affirming the judgment C
and decree dated 11th September, 1995 in Trial Suit No. 201 of 1985 has
been set-aside. Consequently, the suit has been decreed by the High
Court. Hence, the appeal by the defendants in the suit.
2. For the sake of convenience, the parties herein shall be referred
to in terms of their rank and status before the Trial Court. D
3. The case of the plaintiffs in a nutshell is stated as under:-
(i) The suit property was owned and possessed by Braja Mohan
Dey and plaintiff no. 2, namely, Dhirendra Chandra Saha
was a tenant running a shop in a hut located within the suit
property. Braja Mohan Dey took a loan of Rs. 10,000/- E
from plaintiff no. 2 and since he was unable to repay the
loan, he sold the land in favour of plaintiff no.1 in lieu of the
loan amount.
(ii) However, soon after the sale, Braja Mohan Dey went to
East Pakistan (now Bangladesh) and could not complete F
registration of the sale deed in favour of plaintiff no. 2.
Therefore, he executed a Power of Attorney dated 01st
August, 1968, in favour of plaintiff no. 2 before the 1st Class
Magistrate, Komilla, Komilla District, East Pakistan thereby
appointing plaintiff no. 2 as his attorney i.e. on behalf of the
G
seller, Braja Mohan Dey, to execute a sale deed and transfer
the property to the buyer as his Attorney.
(iii) On the strength of the Power of Attorney dated 01st August,
1968, plaintiff no. 2 executed and registered a sale deed
dated 03rd September 1968 in his own favour as the attorney
H
164 SUPREME COURT REPORTS [2023] 4 S.C.R.
A on behalf of the seller, Braja Mohan Dey. Plaintiff no. 2
thereby became the owner of the suit property.
(iv) In his capacity as the absolute owner of the suit property,
plaintiff no. 2 then executed a sale deed dated 29th October,
1968, in favour of his wife-plaintiff no. 1, namely, Gita Rani
B Saha. The said sale deed was registered on 09th November,
1968. That the suit land stood in the name of plaintiff no. 1
who duly paid municipality tax, land revenue etc.
(v) That on one portion of the suit property described as
schedule ‘A’ property in the plaint, plaintiff no. 2 was running
C a grocery business under the name M/s. Dipak Bhandar.
That the land falling to the eastern side of schedule ‘A’
property, described as schedule ‘B’ property in the plaint,
was sold by plaintiff no. 2 to Makhan Chand Deb, who
subsequently sold the said land to Gauranga Chandra Dey.
Defendant no 1 was Gauranga Chandra Dey’s tenant in
D
respect of schedule ‘B’ property.
(vi) That plaintiff no. 2 constructed a godown in the portion
behind his shop and the same has been described as
schedule ‘C’ property in the plaint. The same was also in
the possession of plaintiff no. 2. That defendant no. 1 tried
E to take forceful possession of the suit property by breaking
down the said godown. In this regard Miscellaneous Case
No. 02 of 1981 was registered in the Court of the Sub-
Divisional Magistrate, Sadar and a prohibitory order was
issued under Section 144 of the Code of Criminal Procedure,
F 1898. During the pendency of the prohibitory order, the
defendants entered into the suit property, took forceful
possession of the same and broke down the godown.
(vii) Thereafter, the Executive Magistrate took cognizance of
Miscellaneous Case No. 02 of 1981 and by an order dated
G 13th July, 1984 directed the defendants to vacate the suit
premises, failing which, possession thereof would be
forcefully recovered with the aid of police authorities.
However, the order dated 13th July, 1984 was set aside by
the Additional District and Sessions Judge by an order dated
30th January, 1985 on the ground that there was a delay of
H
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 165
(DEAD) THROUGH LRS. & OTHERS [B. V. NAGARATHNA, J.]
two months in conversion of the proceedings initially A
registered under Section 144 of the Code of Criminal
Procedure to proceedings under Section 145 of the Code.
The order of the Additional District and Sessions Judge
dated 30th January, 1985 was sustained by the Gauhati High
Court, while granting liberty to plaintiff no. 2 to initiate fresh
B
proceedings in this regard. That accordingly fresh
proceedings were initiated.
(viii) That notwithstanding the fact that notice of the fresh
proceedings was served on the defendants, they started
putting up a pucca construction on the suit property.
Therefore, the plaintiffs were constrained to file a suit for C
declaration of title and recovery of khas possession of the
suit land.
4. In response to the plaint, the defendants filed a written statement
the contents of which are encapsulated as under:-
D
(i) The fact that Braja Mohan Dey was the original owner and
possessor of the suit property, was denied. It was averred
that the contents of the plaint regarding the loan obtained
by Braja Mohan Dey, in lieu of which the suit property was
sold to plaintiff no. 2, weretotally false. That no power of
attorney was executed by Braja Mohan Dey in favour of E
plaintiff no. 2 in respect of the suit property.
(ii) That plaintiff no. 2 was a tenant under defendant no. 1 in a
room located in the northern portion of schedule ‘A’ property.
(iii) That there arose no question of the defendants forcibly F
taking possession of schedule ‘C’ property as they had been
in legal possession of the suit property for more than thirty
years, i.e., since the year 1981. That the defendants had
been running a business in the suit property under the name
“Chandra Hotel.” That neither of the plaintiffs was ever in
possession of the suit land. That the documents based on G
which the plaintiffs claimed title over the suit land, i.e., power
of attorney and sale deeds were false and fabricated.
With the aforesaid averments, it was prayed before the Trial Court
that the suit for declaration of title and recovery of khas possession of
the suit land, filed by the plaintiffs, be dismissed. H
166 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 5. The Court of the Assistant District Judge, West Tripura, Agartala
by its judgment and decree dated 11th September, 1995 dismissed T.S.
No. 201 of 1985.
The salient findings of the Trial Court are as under:
(i) That the sale deed dated 03rd September, 1968 did not contain
B an endorsement by the Sub-Registrar to the effect that the
sale deed was executed by plaintiff no. 2 in his capacity as
the attorney of Braja Mohan Dey. The endorsement made
by the Sub-Registrar on the sale deed dated 03rd September
was a simple endorsement merely stating that the sale deed
C had been executed by plaintiff no. 2.
(ii) That it was not stated in the sale deed dated 03rd September,
1968 itself that plaintiff no. 2 was making the sale on the
strength of the power of attorney executed in his favour by
Braja Mohan Dey.
D (iii) That the plaintiffs did not produce before the Trial Court,
the power of attorney which formed the basis for the sale
deed dated 03rd September, 1968. That although in another
suit, being T.S. 79/1973, plaintiff no. 2 had deposed that the
document conferring power of attorney on plaintiff no. 1,
E was handed over by him to defendant no. 1, no such
submission was made in the present case.
(iv) That the sale deed dated 03rd, September, 1968 could not
be held to be properly executed for want of power of
attorney authorising such execution. Therefore, plaintiff no.
F 2 could not be said to have any right, title or interest over
the suit property. Consequently, it could not be held that the
transfer made by plaintiff no. 2 in favour of plaintiff no. 1
was valid.
(v) That no evidence was led by the defendants to establish
their title over the suit property by adverse possession which
G
is a significant finding.
6. Being aggrieved, the plaintiffs preferred T.A. No. No. 02 of
1996 before the first appellate court. By judgment dated 26th August,
1995, the first appeal was dismissed and the judgment of the Trial Court
was confirmed.
H
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 167
(DEAD) THROUGH LRS. & OTHERS [B. V. NAGARATHNA, J.]
The relevant findings of the first appellate court are encapsulated A
as under:
(i) That the plaintiffs failed to prove that the power of attorney
was handed over to defendant no. 1. That since the power
of attorney stated to be executed by Braja Mohan Dey in
favour of plaintiff no. 2 was neither produced before the B
court, nor was it proved that the same was handed over to
defendant no. 1, a question had arisen as to existence and
genuinity of the power of attorney.
(ii) That since the said power of attorney formed the basis for
the sale deed dated 03rd September, 1968, the sale deed C
could not be considered to be legally executed.
7. Being aggrieved, the plaintiffs preferred regular second appeal
No. 01 of 2005 before the High Court of Tripura at Agartala. By the
impugned judgment dated 05th April, 2018, the second appeal was allowed
and the judgments of the Trial Court and first appellate court were set D
aside.
The High Court considered and decided the following substantial
questions of law:
“1) Whether the endorsement made on the sale deed No. 1-10394
E
dated 03.09.1968 in respect of the power of attorney is a
substantive evidence in respect of the power of attorney authorising
the plaintiff no. 2 to sell the said land as demised in the sale deed
dated 03.09.1968?
2) Whether the defendants had fundamental onus to discharge in
F
respect that the power of attorney was not in existence or forged
and as such, the sale deed dated 03.09.1968 cannot be treated as
the instrument of valid transfer?”
8. The following findings were recorded by the High Court in the
impugned judgment:
G
(i) That facts as to the authority of plaintiff no. 2 to execute
the sale deed dated 03rd September, 1968 were recited
therein and having been satisfied about the power of plaintiff
no. 2 to execute the sale deed,the same was allowed by the
Sub-Registrar for being registered.
H
168 SUPREME COURT REPORTS [2023] 4 S.C.R.
A (ii) When a registering authority has made an endorsement
accepting that by virtue of a power of attorney, the attorney
was allowed to execute the sale deed, a statutory presumption
ought to be drawn as to the fact of validity of the power of
attorney and consequently of the sale deed.
B (iii) That there is a presumption of correctness under Section
58 of the Registration Act, 1908, to transactions endorsed
by a Sub-Registrar. That such statutory presumption can
be rebutted only by strong evidence to the contrary.
C (iv) That the Trial Court and first appellate court had wrongly
shifted the onus on the plaintiffs, while the burden ought to
have been on the defendants to prove their case which was
contrary to the statutory presumption of validity of the sale
deed dated 03rd September, 1968. That the defendants failed
to rebut the presumption of validity of the sale deed even
D though the onus was squarely on them.
Aggrieved by the judgment of the High Court allowing the second
appeal preferred by the plaintiffs, the appellants-defendants have
approached this Court.
E 9. We have heard Sri Rana Mukherjee, learned senior advocate
appearing on behalf of the appellants and Sri. Hrishikesh Baruah, learned
advocate appearing on behalf of the respondents, and perused the material
on record.
10. Learned Senior Counsel for the appellants-defendants at the
F outset contended that the High Court was not right in allowing the second
appeal preferred by the plaintiffs by drawing a presumption as to validity
of the sale deed dated 03rd September, 1968. That the High Court
committed a serious error in law while setting aside the concurrent
findings of the Trial Court and first appellate court to hold that the sale
deed dated 03rd September, 1968 was valid even though the power of
G attorney forming the basis of such sale deed was neither produced nor
proved. That there may be a statutory presumption under Section 60 of
the Registration Act, 1908 only where all other requirements of execution
of sale deed are complied with and when there is no doubt as to the
genuinity of the power of attorney. That a presumption ought not to have
been drawn in the present case as the plaintiffs have failed to produce
H
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 169
(DEAD) THROUGH LRS. & OTHERS [B. V. NAGARATHNA, J.]
the power of attorney or even a copy thereof to prove the existence of A
the same.
11. It was further contended that even if it was to be assumed
that a power of attorney was executed by Braja Mohan Dey in favour
of plaintiff no. 2, the same would still not be valid in the eye of law owing
to reasons of non- satisfaction of the statutory requirements of Section B
33 (1) (c) of the Registration Act, 1908. That it was an undisputed fact
that as on the date on which the power of attorney is stated to be executed,
Braja Mohan Dey was residing in East Pakistan. That a power of attorney
executed in a foreign country, in order to be valid would have to be
executed in accordance with Section 33 (1) (c) of the Registration Act,
1908. However, in the instant case, there is no evidence to demonstrate C
that the power of attorney was executed in accordance with the said
statutory provision. That since the execution of the power of attorney
was not in accordance with Section 33(1)(c), no statutory presumption
can be drawn under Section 60 of the Registration Act, 1908, as to the
validity of the sale deed dated 03rd September, 1968. D
12. It was next submitted that the conduct of plaintiff no. 2 required
consideration inasmuch as he executed the second sale deed in favour
of his wife, as the power of attorney of the original owner, even though
he could have executed the same in his capacity as owner of the suit
property by virtue of the sale made in his favour on 03 rd September, E
1968.
13. Sri Rana Mukherjee, Learned Senior Counsel appearing on
behalf of the defendants- appellants contended that a party who avers
title in a property must prove the same and such party is not relieved of
the onus probandi. That assuming for the sake of argument that the F
suit was not defended by the defendants, the plaintiffs would still have to
prove their title in order to be entitled to a decree.
With the aforesaid averments, it was prayed that the impugned
judgment of the High Court be set-aside and the judgment of the Trial
Court which was affirmed by the first appellate court, be restored. G
14. Per contra, learned counsel for the respondents-plaintiffs
supported the impugned judgment of the High Court and contended that
the High Court rightly drew a statutory presumption as to the validity of
the sale deed dated 03rd September, 1968. That it is trite law that
registration of a document is a solemn act and the recitals of a registered
H
170 SUPREME COURT REPORTS [2023] 4 S.C.R.
A document are presumed to be valid unless such a presumption is rebutted
by strong evidence to the contrary. That since the Sub-Registrar had
accepted the sale deed dated 03rd September, 1968 for registration, it is
to be presumed that the Sub-Registrar had done so only on satisfying
himself as to the fact that the person who was executing the document
was the proper person and competent to do so.
B
15. It was submitted that the endorsement made on the sale deed
dated 03rd September, 1968 could be considered as prima-facie evidence
as to the title to the suit property. That accordingly, there would arise a
presumption as to validity of the sale deed. While such presumption is a
rebuttable presumption, the defendants in the present case had failed to
C discharge the burden of rebutting the same.
16. Section 60(2) of the Registration Act, 1908 was pressed into
service, to contend that registration of a document was proof enough of
the fact that the said document had been registered in the manner provided
under the Registration Act, 1908, and that the facts mentioned in the
D endorsement have occurred as mentioned therein. In that regard, it was
contended that since the sale deed dated 03rd September, 1968 was a
registered document, a statutory presumption may be drawn as to the
fact that the registration was completed after due compliance of the
provisions of the Act.
E 17. That the Trial Court and the first appellate court cast an onerous
burden on the plaintiffs to produce the power of attorney which formed
the basis of the sale deed dated 03rd September, 1968 to prove the sale
deed which is a deed of conveyance of title. That such a burden was not
contemplated under law and on that ground, the present Civil Appeal
F may be dismissed. It was urged that production of power of attorney
was not required in order to prove a registered sale deed.
In the above backdrop, it was contended that the High Court was
right in allowing the second appeal and hence, there is no merit in the
present appeal.
G 18. Having heard the learned counsel for the respective parties,
the following points would arise for consideration:
(i) Whether the statutory requirements of Section 33 (1) (c)
of the Registration Act, 1908 had been complied with in the
instant case while executing the power of attorney dated
H 01st August, 1968?
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 171
(DEAD) THROUGH LRS. & OTHERS [B. V. NAGARATHNA, J.]
(ii) Whether non-production of the document of power of A
attorney before the Trial Court and the first appellate court
would be fatal to the case of the plaintiffs?
(iii) Whether the plaintiffs have proved the sale deeds dated
03rd September, 1968 and 29th October, 1968?
(iv) What order? B
The relevant Sections of Registration Act, 1908, adverted to by
learned counsel for the parties read as under:
“32. Persons to present documents for registration.—Except
in the cases mentioned in 5 [sections 31, 88 and 89], every C
document to be registered under this Act, whether such registration
be compulsory or optional, shall be presented at the proper
registration-office,—
(a) by some person executing or claiming under the same, or,
in the case of a copy of a decree or order, claiming under
D
the decree or order, or
(b) by the representative or assign of such a person, or
(c) by the agent of such a person, representative or assign,
duly authorised by power-of-attorney executed and
authenticated in manner hereinafter mentioned. E
33. Power-of-attorney recognisable for purposes of
section 32.—
(1) For the purposes of section 32, the following powers-of-
attorney shall alone be recognized, namely:—
F
(a) xxx xxx xxx;
(b) xxx xxx xxx;
(c) if the principal at the time aforesaid does not reside in
1
[India], a power-of-attorney executed before and authenticated
by a Notary Public, or any Court, Judge, Magistrate, 2[Indian] G
Consul or Vice-Consul, or representative 3[***] of the Central
Government:
1
Subs. by Act 3 of 1951, Sec.3 and Sch., for “the States” (w.e.f. 1-4-1951).
2
Subs. by the A.O. 1950, for “British”.
3
The words “of His Majesty or” omitted by the A.O. 1950. H
172 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 34. Enquiry before registration by registering officer.—
(l) Subject to the provisions contained in this Part and in sections
41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered
under this Act, unless the persons executing such document,
or their representatives, assigns or agents authorized as
B aforesaid, appear before the registering officer within the time
allowed for presentation under sections 23, 24, 25 and 26:
Provided that, if owing to urgent necessity or unavoidable
accident all such persons do not so appear, the Registrar, in
cases where the delay in appearing does not exceed four
C months, may direct that on payment of a fine not exceeding
ten times the amount of the proper registration fee, in addition
to the fine, if any, payable under section 25, the document may
be registered.
(2) Appearances under sub-section (1) may be simultaneous
D or at different times.
(3) The registering officer shall thereupon—
(a) enquire whether or not such document was executed
by the persons by whom it purports to have been executed;
E (b) satisfy himself as to the identity of the persons appearing
before him and alleging that they have executed the
document; and
(c) in the case of any person appearing as a representative,
assign or agent, satisfy himself of the right of such person
F so to appear.
(4) Any application for a direction under the proviso to sub-
section (1) may be lodged with a Sub-Registrar, who shall
forthwith forward it to the Registrar to whom he is subordinate.
(5) Nothing in this section applies to copies of decrees or
G orders.
58. Particulars to be endorsed on documents admitted to
registration.—
(1) On every document admitted to registration, other than a
H copy of a decree or order, or a copy sent to a registering officer
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 173
(DEAD) THROUGH LRS. & OTHERS [B. V. NAGARATHNA, J.]
under section 89, there shall be endorsed from time to time the A
following particulars, namely:—
(a) the signature and addition of every person admitting the
execution of the document, and, if such execution has been
admitted by the representative, assign or agent of any person,
the signature and addition of such representative, assign or B
agent;
(b) the signature and addition of every person examined in
reference to such document under any of the provisions of
this Act; and
(c) any payment of money or delivery of goods made in the C
presence of the registering officer in reference to the
execution of the document, and any admission of receipt of
consideration, in whole or in part, made in his presence in
reference to such execution.
(2) If any person admitting the execution of a document refuses D
to endorse the same, the registering officer shall nevertheless
register it, but shall at the same time endorse a note of such
refusal.
“60. Certificate of registration.—
(1) After such of the provisions of Sections 34, 35, 58 and 59 E
as apply to any document presented for registration have been
complied with, the registering officer shall endorse thereon a
certificate containing the word “registered”, together with the
number and page of the book in which the document has been
copied.
F
(2) Such certificate shall be signed, sealed and dated by the
registering officer, and shall then be admissible for the purpose
of proving that the document has been duly registered in manner
provided by this Act, and that the facts mentioned in the
endorsement, referred to in Section 59 have occurred as therein
mentioned.” G
Sections 67 and 85 of the Indian Evidence Act, 1872, reads as
under:
“67. Proof of signature and handwriting of person alleged
to have signed or written document produced.—If a
document is alleged to be signed or to have been written wholly H
174 SUPREME COURT REPORTS [2023] 4 S.C.R.
A or in part by any person, the signature or the handwriting of so
much of the document as is alleged to be in that person’s
handwriting must be proved to be in his handwriting.
85. Presumption as to powers-of-attorney. –– The Court shall
presume that every document purporting to be a power-of-attorney,
B and to have been executed before, and authenticated by, a Notary
Public, or any Court, Judge, Magistrate, [Indian] Consul or Vice-
Consul, or representative of the [Central Government], was so
executed and authenticated.”
Section 17 of the Registration Act speaks about documents of
C which registration is compulsory, while Section 18 deals with documents
of which registration is optional. Clause (f) of Section 18 states that all
other documents not required by Section 17 to be registered, may be
registered at the option of the parties. In other words, the documents
which are compulsorily registrable are listed under Section 17 and such
list is exhaustive. The documents, registration of which is optional, are
D specified in clauses (a) to (e) of Section 18 but this list is not exhaustive.
Under clause (f) of Section 18 “all other documents” which do not require
registration under Section 17 are also optionally registrable such as the
power of attorney, document relating to adoption etc.. A power of attorney
is not a compulsorily registrable document when it is duly notarized. It
E carries the presumption of being valid in view of Section 85 of Evidence
Act. Since, a power of attorney does not come within the ambit of Section
17 or clause (a) to (e) of Section 18, registration of a power of attorney
is optional. An attorney holder may execute a deed of conveyance in
exercise of the power granted under the power of attorney and convey
title on behalf of the grantor or principal, provided he has been specifically
F given power to sell the property of the principal. The nature and scope
of power of attorney has been explainedby this Court speaking through
R.V. Raveendran, J. in Suraj Lamp and Industries vs. State of
Haryana (2012) 1 SCC 656. The relevant paragraphs of the judgment
reads as under:
G “20. A power of attorney is not an instrument of transfer in regard
to any right, title or interest in an immovable property. The power
of attorney is creation of an agency whereby the grantor authorises
the grantee to do the acts specified therein, on behalf of grantor,
which when executed will be binding on the grantor as if done by
him (see Section 1-A and Section 2 of the Powers of Attorney
H
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 175
(DEAD) THROUGH LRS. & OTHERS [B. V. NAGARATHNA, J.]
Act, 1882). It is revocable or terminable at any time unless it is A
made irrevocable in a manner known to law. Even an irrevocable
attorney does not have the effect of transferring title to the grantee.
21. In State of Rajasthan v. Basant Nahata [(2005) 12 SCC
77] this Court held: (SCC pp. 90 & 101, paras 13 & 52)
‘13. A grant of power of attorney is essentially governed by B
Chapter X of the Contract Act. By reason of a deed of power
of attorney, an agent is formally appointed to act for the principal
in one transaction or a series of transactions or to manage the
affairs of the principal generally conferring necessary authority
upon another person. A deed of power of attorney is executed C
by the principal in favour of the agent. The agent derives a
right to use his name and all acts, deeds and things done by
him and subject to the limitations contained in the said deed,
the same shall be read as if done by the donor. A power of
attorney is, as is well known, a document of convenience.
D
***
52. Execution of a power of attorney in terms of the provisions
of the Contract Act as also the Powers of Attorney Act is
valid. A power of attorney, we have noticed hereinbefore, is
executed by the donor so as to enable the donee to act on his E
behalf. Except in cases where power of attorney is coupled
with interest, it is revocable. The donee in exercise of his power
under such power of attorney only acts in place of the donor
subject of course to the powers granted to him by reason
thereof. He cannot use the power of attorney for his own
benefit. He acts in a fiduciary capacity. Any act of infidelity or F
breach of trust is a matter between the donor and the donee.’
An attorney-holder may however execute a deed of
conveyance in exercise of the power granted under the power of
attorney and convey title on behalf of the grantor.”
G
The relevant provisions of the Registration Act, 1908, could be
discussed.
(i) Section 32 speaks about persons to present document for
registration. A power of attorney has a special authority to
present a document on behalf of the principal at the
H
176 SUPREME COURT REPORTS [2023] 4 S.C.R.
A registration office vide Chottey Lal vs. The Collector of
MoradabadA.I.R. 1922 PC 279.
(ii) Under Section 33 (1) (c), if a power of attorney has been
executed before and authenticated by Magistrate, 1st Class
of Komilla (Bangladesh) authorising the attorney to execute
B a sale deed for a house in India, it is sufficient to prove its
execution vide Atal Chakravarty vs. Sudhi Gopal Pandey
(1969) 73 CWN 947. On the other hand, if a power of
attorney is not executed and authenticated in compliance
with Section 33(1)(c), the same is invalid. Thus, if a principal
C does not reside in India and power of attorney executed
before and authenticated by a Notary Public or any court
Judge, Magistrate, Indian Consul or Vice-Consul, or
representative of the Central Government, the same is valid.
(iii) Section 34 speaks about the enquiry to be made before
registration of a document by registering officer. Section
D
35 casts a duty on the registering authority to enquire about
the identity of the executant and the factum of execution
and registration of a document is to be treated as
presumption of execution by the person indicated as the
executant of the document. Such a presumption is, however,
E rebuttable. Sections 34 and 35 state what a registering officer
has to see before registering a document. Once satisfied
as to such particulars as are stated under Sections 34 and
35, he cannot refuse to register a document except mentioned
under grounds in Section 35(3).
F (iv) Section 58 speaks about particulars to be endorsed on
documents admitted for registration, namely:
a) the signature and addition of every person admitting
the execution of the document, and, if such execution
has been admitted by the representative, assign or
G agent of any person, the signature and addition of
such representative, assign or agent;
b) the signature and addition of every person examined
in reference to such document under any of the
provisions of this Act; and
H
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 177
(DEAD) THROUGH LRS. & OTHERS [B. V. NAGARATHNA, J.]
c) any payment of money or delivery of goods made in A
the presence of the registering officer in reference
to the execution of the document, and any admission
of receipt of consideration, in whole or in part, made
in his presence in reference to such execution.
Thus, the registering officer shall endorse the signature of every B
person admitting the execution of document. Such document is prima
facie evidence against the executant. The presumption of correctness
attached to endorsement made by the Sub-Registrar is in view of the
provisions of Sections 58, 59 and 60 of the Registration Act. This
presumption can be rebutted only by strong evidence to the contrary.
C
On compliance of Sections 34, 35, 58 and 59 as they apply to a
given document, the registering officer shall endorse a certificate
containing word “Registered” on the document itself and indicate the
number and page of the book in which the document has been copied.
This gives the document, the character of a registered document. Thus,
D
compliance of the provisions of Sections 34, 35, 52, 58 and 59 constitutes
registration. The certificate of registering officer is admissible to prove
the admission of execution.
However, a registered deed has to be proved in accordance with
Section 67 of the Evidence Act, 1872. Section 67 states that if a document
is alleged to be signed or to have been written wholly or in part by any E
person, the signature or the handwriting of so much of the document as
is alleged to be in that person’s handwriting must be proved to be in his
handwriting. Section 67 states that proof of signature and the genuineness
of document proved by the proof of handwriting is proof of execution.
Execution of a document means signing a document by consenting on it F
by a party. Section 67 does not prescribe any particular mode of proof.
Mere registration of a document is not self-sufficient proof of its
execution. It is only a prima facie proof of its execution particularly
when no other evidence is available. Registration of a document is
evidence of its execution by its executor. Certificate by registering officer
G
under Section 60 of the Registration Act, 1908 is relevant for proving its
execution. Proof by evidence afforded by the contents of the documents
is of considerable value.
In the instant case, what is sought to be proved is title by the
sale deed and not the power of attorney as it is the sale deed which
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178 SUPREME COURT REPORTS [2023] 4 S.C.R.
A conveys title and the sale deed has been executed in accordance with
the provisions of Registration Act, 1908, and proved in accordance with
Section 67 of Evidence Act. It cannot be held that the sale made on
behalf of the seller (original owner of the suit land) to the buyer through
the power of attorney is vitiated as the power of attorney was not
produced before the Court. This is because even in the absence of the
B
production of the power of attorney, the contents of the sale deed and
the execution of the power of attorney as well as the sale deed have
been established by proving the sale deed in accordance with the law.
19. A primary plank in the arguments advanced on behalf of the
appellants-defendants is that the requirements of Section 33(1) (c) of
C the Registration Act had not been complied with while executing the
power of attorney dated 01st August, 1968 and therefore, no validity
could be attached to the said document. Consequently, the sale deed
dated 03rd September, 1968 which was executed on the strength of the
said power of attorney could also not be presumed to be valid. In order
D to determine whether the statutory requirements of Section 33 (1) (c) of
the Registration Act, 1908 had been complied with while executing the
power of attorney, the recitals of the sale deed dated 03rd September,
1968 may be referred to. On perusal of Annexure CA-1 (Exhibit – 11
before trial court) which is a copy of deed of sale dated 03rd September,
1968 executed by the Power of Attorney holder (plaintiff No.2) in favour
E of himself, the following facts emerge:
(i) That Sri Braja Mohan Dey is the owner of the land in
question after getting rayati jote allotment order from the
government land authorities.
F (ii) That due to the need for construction of huts and for urgent
family expenditure, the seller Braja Mohan Dey had
approached the buyer, that is, Sri Dhirendra Chandra Saha,
(plaintiff No.2) to lend some money, as the buyer was the
tenant of the said land (suit schedule property) and the buyer
agreed to lend the money to the seller.
G
(iii) In the year 1964, the seller received a loan amount of
Rs.10,000/- (ten thousand) from the buyer and constructed
huts on the aforesaid land.
(iv) The seller had gone to Hatiya of East Pakistan but was
unable to return and could not repay the loan amount to the
H
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 179
(DEAD) THROUGH LRS. & OTHERS [B. V. NAGARATHNA, J.]
buyer therefore, he intended to sell his land and, hence, A
through a messenger, informed the buyer about the same
as he was in possession of the suit schedule land, as a tenant.
The said tenant/buyer agreed to buy the land in lieu of the
debt that the seller had to pay.
(v) The seller acknowledged this condition that in discharging B
the liability of loan of Rs.10,000/- towards the buyer and to
provide a registered Sale Deed in favour of the buyer, on
1st August, 1968 executed a Power of Attorney before the
1st Class Magistrate, Komilla, Komilla District, East Pakistan
appointing Sri Dhirendra Chandra Saha – plaintiff No.2 as
his attorney i.e. on behalf of the seller to execute a sale C
deed and transfer the property to the buyer as his Attorney.
(vi) That the buyer can obtain mutation against the seller in the
Government records by creating a record of right in his
name including his legal heirs and the successors without
any objection. D
20. In Annexure CA – 2 (Exhibit – 12), which is a copy of the sale
deed dated 29th October, 1968 the following recitals are recorded:
(i) That the schedule land is in absolute ownership and
possession of the owner namely, Sri Dhirendra Chandra
E
Saha (plaintiff No.2) by virtue of a registered sale deed
dated 03rd September, 1968.
(ii) That since the original owner, Sri Braja Mohan Dey, could
not repay a sum of Rs. 10,000/- (ten thousand) to the seller
(Sri Dhirendra Chandra Saha) he executed a Power of
Attorney dated 01st August, 1968 appearing before the 1st F
Class Magistrate, Komilla Sadar, District Komilla, East
Pakistan appointing Sri Dhirendra Chandra Saha (plaintiff
No.2) as his legal attorney giving power to sell or transfer
himself the property in question the land in question.
(iii) That on the strength of the aforesaid power of attorney G
dated 03rd September, 1968, plaintiff No.2 sold the said
property to himself vide registered deed dated 03 rd
September, 1968 as a result he became the absolute owner
and in possession of the land along with the house standing
thereon as a buyer. H
180 SUPREME COURT REPORTS [2023] 4 S.C.R.
A (iv) As an absolute owner, he executed registered sale deed in
favour of his wife Geeta Rani Saha on account of an earlier
loan taken by him for Rs.20,000/- and in lieu of repayment
thereof.
21. On a conjoint reading of the aforesaid two documents, namely
B sale deeds, it is established that the initial sale deed dated 03rd September,
1968 by plaintiff No.2 Sri Dhirendra Chandra Saha is as a power of
attorney holder of Braja Mohan Dey, to himself as a buyer. The power
of attorney is dated 01st August, 1968, the details of which are referred
to in the said sale deed inasmuch as the power of attorney was executed
C by the original owner Sri Braja Mohan Dey before the 1st Class
Magistrate, Komilla, East Pakistan, which is evident on a reading of
both the documents. Thereafter, plaintiff No.2 executed a sale deed dated
29th October, 1968 in favour of the plaintiff No.1 as the absolute owner of
the suit schedule property. Therefore, there is compliance of Section
33(1)(c) of the Registration Act, 1908 inasmuch as the power of attorney
D has been executed before the 1st Class Magistrate, Komilla, East Pakistan.
Hence there is no substance in the contention of the learned Senior Counsel
appearing for the appellants-defendants that the requirements of Section
33(1) (c) of the Registration Act, 1908, had not been complied with while
executing the power of attorney dated 01st August, 1968 and therefore, no
E validity could be attached to the said document.
22. It is also required to be noted at this juncture that as per Section
18 of the Registration Act, registration of deed of attorney is optional.
Further, Section 32 deals with the categories of persons who can present
documents for registration. The following three categories of persons
are mentioned therein:
F
(a) by some person executing or claiming under the same, or,
in the case of a copy of a decree or order, claiming under
the decree or order, or
(b) by the representative or assign of such a person, or
G (c) by the agent of such a person, representative or assign,
duly authorised by power-of-attorney executed and
authenticated in manner mentioned therein.
Therefore, it is evident that plaintiff no. 2, had the authority as per
Section 32 (c) to present a document for registration in his capacity as
H the attorney of Braja Mohan Dey, the original owner of the suit property.
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 181
(DEAD) THROUGH LRS. & OTHERS [B. V. NAGARATHNA, J.]
23. Further, non- production of the power of attorney in the suit is A
also not fatal to the case of the plaintiffs. In this regard, reliance may be
placed on a recent judgment of this Court in Amar Nath vs. Gian Chand
and Anr., 2022 SCC OnLine SC 102. The facts of the said case are
that the Plaintiff therein had executed a power of attorney in favour of
the second defendant therein and on the strength of such power of
B
attorney, the second defendant executed a sale deed in favour of the
first defendant. However, the plaintiff challenged the sale made in favour
of the first defendant, inter-alia, on the ground that the second defendant
could not have executed a sale deed in the absence of the original power
of attorney and the sub-registrar was required to verify this aspect from
the second defendant. It was contended that the sale deed executed C
without producing the power of attorney was without authority as the
plaintiff No.2 was not competent to transfer the possession in the absence
of the original power of attorney. The suit was dismissed by the Trial
Court and the First Appellate Court. The High Court in Second Appeal
reversed the decision of the Trial Court and First Appellate Court and
D
decreed the suit in favour of the plaintiff. In doing so, the High Court
noted that it was unclear from the endorsement on the sale deed as to by
whom the plaintiff No.2 was identified to be the power of attorney. This
Court in a Civil Appeal challenging the decision of the High Court, set
aside the same and held that a power of attorney holder, while executing
a sale deed, need not produce the original document conferring power E
of attorney. That a sale would not be liable to be disturbed solely on the
ground that the power of attorney forming the basis of such sale was not
produced before the Sub-Registrar at the time of registration.
On examining the scheme of Sections 32-34 of the Registration
Act, the following observations were made: F
“19.The argument of the plaintiff that for a proper and legal
presentation of a document, the first defendant was obliged to
produce the original power of attorney, does not appear to be sound.
20. In other words, when a person empowers another to execute
a document and the power of attorney, acting on the power, G
executes the document, the power of attorney holder can present
the document for registration under Section 32(a). Section 32(a)
of the Registration Act deals with the person executing a document
and also the person claiming under the same. It also provides for
persons claiming under a decree or an order being entitled to H
182 SUPREME COURT REPORTS [2023] 4 S.C.R.
A present a document. Section 32(b) speaks about the representative
or assignee of ‘such a person’. The word such a person in Section
32(b) is intended to refer to the persons covered by Section 32(a).
Finally, Section 32(c) provides for the agent of ‘such a person’
which necessarily means the persons who are encompassed by
Section 32(a). Besides agent of the person covered by Section
B 32(a), Section 32(c) also takes in the agent of the representative
or assignee. Now the words representative or assignee are to be
found in Section 32(b). Thus, Section 32(c) deals with agents of
the persons covered by Section 32(a) and agents of the
representative or assignee falling under Section 32(b). It is in
C respect of such an agent that there must be due authorisation by
a power of attorney, which in turn, is to be executed and
authenticated in the manner provided for in Section 33. However,
the person, who has actually signed the document or executed
the document for the purpose of Section 32 (a) does not require a
power of attorney to present the document. It may be open to the
D principal, who has entered obligations under the document, to
present the document. Section 32(c) must alone be read with
Section 33 of the Act. Thus, when Section 32(c) of the Registration
Act declares that a document, whether it is compulsorily or
optionally registrable, is to be presented, inter alia, by the agent
E of such a person, representative or assignee, duly authorised by
power of attorney, it must be executed and authenticated in the
manner and hereinafter mentioned immediately in the next
following section. Section 33 by its very heading provides for power
of attorney recognisable for the purpose of Section 32. Section
32(a) cannot be read with Section 33 of the Act. In other words,
F in a situation, if a document is executed by a person, it will be
open to such a person to present the document for registration
through his agent. The agency can be limited to authorising the
agent for presenting the document for it is such a power of attorney,
which is referred to in Section 32(c). It is in regard to a power of
attorney holder, who is authorised to present the document for
G registration to whom Section 33 would apply. In the facts of this
case, the second defendant was armed with the power of attorney
dated 28.01.1987 and if it was not cancelled and he had executed
the sale deed on 28.04.1987, he would be well within his rights to
present the document for registration under Section 32(a) of the
H Act.
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 183
(DEAD) THROUGH LRS. & OTHERS [B. V. NAGARATHNA, J.]
21. XXX XXX A
22. XXX XXX
23. XXX XXX
24. XXX XXX
25. XXX XXX B
26. For reasons, which we have indicated, Section 32(c) read
with Section 33 and Section 34(2)(c) are interrelated and they
would have no application in regard to the document presented
for registration by a power of attorney holder who is also the
executant of the document. In other words, there is really no need C
for the production of the original power of attorney, when the
document is presented for registration by the person standing in
the shoes of the second defendant in this case as he would be
covered by the provisions of Section 32(a) as he has executed the
document though on the strength of the power of attorney. To D
make it even further clear, the inquiry contemplated under the
Registration Act, cannot extend to question as to whether the
person who executed the document in his capacity of the power
of attorney holder of the principal, was indeed having a valid power
of attorney or not to execute the document or not.”
E
(Underlining by me)
In short, the law laid down in Amar Nath (supra) supports the
position that production of the original power of attorney is not an
indispensable requirement to establish the validity of execution of a sale
deed. It would therefore follow that production of a power of attorney is
F
not a necessary requirement to prove a sale deed before a court of law
executed through a power of attorney.
24. Section 67 of the Evidence Act deals with proof of documents
such as a sale deed as in the instant case. The proof of signature or the
handwriting of the executant on a document is sufficient to prove a
document which is the sale deed dated 29th October, 1968, in the instant G
case. There is no dispute that the said sale deed is not signed by plaintiff
No.2 or that it is not his signature or that he is not the executor of the
document. The admission of the signature of the said document by plaintiff
No.2 is proof of the signature on the document which is sufficient for
proof of the document of sale deed of sale in favour of plaintiff No.1. H
184 SUPREME COURT REPORTS [2023] 4 S.C.R.
A Further, the same is a registered sale deed which is a document conveying
title. Hence, the plaintiff No.1 has acquired title from plaintiff No.2 and
from the original owner of the land in question. Therefore, under the
circumstances, plaintiff No.1 has proved her right, title and interest in
the land in question. There is no contra evidence produced by the
defendants so as to defeat the validity of the sale deeds. The said
B
documents speak for themselves. Therefore, there is no substance in
the contentions of the appellants arising under the provisions of the
Registration Act, 1908. Thus, plaintiff No.1 has acquired title to the land
in question. Further, when a sale deed is executed on the strength of
deed of power of attorney, the non-production of the deed of power of
C attorney in the suit is not fatal to the case of the plaintiff.
25. The appellants-defendants herein contended that that there
may be a statutory presumption as per Section 60 of the Registration
Act, 1908, only where all other requirements of execution of sale deed
are complied with and there is no doubt as to the genuineness of the
D power of attorney. In the present case, the sale deed dated 03rd September,
1968 was executed on the strength of the power of attorney which was
executed in conformity with Section 33 (1) (c) of the Registration Act,
1908 because the power of attorney has been duly executed before the
1st Class Magistrate, Komilla, East Pakistan as noted from the two sale
deeds. There is no contra evidence produced by defendants in that regard.
E Since the requirements of execution of a sale deed are duly complied
with, and there is no reason to doubt the recitals of the sale deed which
has been proved in accordance with law, it would follow that the statutory
presumption under Section 60 of the Registration Act could be invoked
in the instant case.
F 26. It is trite that registration of a document is a solemn act of
parties and the recitals of a registered document are presumed to be
valid unless such a presumption is rebutted by strong evidence to the
contrary, vide Ishwar Dass Jain vs. Sohan Lal, (2000) 1 SCC 434.
This is because, as already stated, the document speaks for itself.
G In Chottey Lal vs. The Collector of Moradabad (supra) the
Privy Council considered the question as to the presumption of validity
of a power of attorney which formed the basis of a registered mortgage
deed which was later challenged. The Privy Council noted that since the
sub-registrar had accepted the document for registration, it is prima-
H facie evidence that the conditions have been satisfied and after registration
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 185
(DEAD) THROUGH LRS. & OTHERS [B. V. NAGARATHNA, J.]
of the document, the burden of proving any alleged infirmity rests on the A
person who challenges the registration. Similarly, in Jugraj Singh and
Anr. vs. Jaswant Singh and Ors., 1970 (2) SCC 386, this Court
reiterated the legal position as to the presumption of regularity of official
acts, and held that it would be presumed that a sub-registrar registering
a document would have proceeded with the registration only on satisfying B
himself as to the fact that the person who was executing the document
was the proper person.
27. Reliance may also be placed on the decision of this Court in
Rattan Singh and Ors. vs. Nirmal Gill and Ors., AIR 2021 SC 899.
In the said case, the issue pertained to the validity of a general power of C
attorney (hereinafter, “GPA”) and consequently of the sale deed executed
on the strength of the GPA. The plaintiff therein, being the executor of
the GPA contended that the GPA was obtained fraudulently and was
therefore invalid. This Court, while holding that no case of fraud was
made out, upheld the validity of the GPA and the sale deed executed on
the strength of the GPA. The relevant observations of this Court as to D
the presumption of validity of documents and burden of proof required
to rebut such presumption, are extracted as under:
“The presumption in favour of a 30-year old document is a
rebuttable presumption. Nothing prevented the Plaintiff to rebut
the presumption by leading appropriate evidence in order to disprove E
the same. Since the Plaintiff failed to do so, the said document
would be binding on the Plaintiff. As a matter of fact, the parties
had acted upon the terms of the said document without any demur
since 1963 and it was, therefore, not open to resile therefrom at
this distance of time. Hence, the trial Court was right in holding F
the 1963 GPA, to be a genuine document.”
28. In short, it has been authoritatively laid down by this Court
that a registered document carries with it, by virtue of it being registered,
the presumption as to the authority of the person executing it. In the
present case, the Trial Court and the First Appellate Court failed to treat G
the endorsement made by the District Sub-Registrar on the body of the
sale deed, as evidence in respect of the authority of Plaintiff No. 2 to
execute the sale deed. This is to be considered in light of the fact that at
no point of time did the original owner namely, Braja Mohan Dey dispute
the execution of power of attorney in favour of Plaintiff No. 2.
H
186 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 29. Prima-facie, the endorsement made on the sale deed dated
03rd September, 1968, could be considered as determinative evidence of
the conveyance of title to the suit property by its original owner, especially
where the defendants have not set up a case to establish any independent
title over the suit property. When such a presumption arises, the onus
would be on a person who challenges such presumption, to successfully
B
rebut it, vide Prem Singh and Ors. vs. Birbal and Ors., (2006) 5
SCC 353. In that context, the question that would arise is, whether, the
defendants have rebutted the presumption of validity of the sale deed
dated 03rd September, 1968. In order to answer this question, the following
facts may be considered:
C (i) Trial Court and First Appellate Court have concurrently
found that the defendants do not have any title over the suit
land and against such finding the defendants have not
preferred an appeal. They have thus accepted this finding
which has attained finality.
D (ii) The original owner namely, Braja Mohan Dey has not
initiated any proceeding to dispute the execution of power
of attorney in favour of Plaintiff No. 2.
(iii) The order of the Sadar Munsiff dated 17th July, 1974, in
T.S. 69/1974 records that by way of a sale deed dated 03rd
E September, 1968, Plaintiff No. 2 had purchased the suit
property and was paying municipal taxes as the owner of
the premises which finding is binding on the parties herein
as the same has not been upset by any Court of law. Sarat
Chandra Majumdar, original defendant No. 1 in the present
F suit, was the plaintiff therein.
(iv) Notwithstanding the fact that the original defendant had
become aware of the sale deed dated 03rd September, 1968
and of the power of attorney that formed the basis of such
sale deed, no steps were taken by the Defendant to
G challenge Plaintiff No. 2’s title over the suit property. It
was only in the written statement filed in the present suit
that it was vaguely claimed that Sarat Chandra Majumdar
was the title holder of the suit property and Plaintiff No. 2
was a tenant therein. This, without there being any legal
basis or evidence.
H
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA 187
(DEAD) THROUGH LRS. & OTHERS [B. V. NAGARATHNA, J.]
In light of the said facts, it can be stated that the defendant has A
not rebutted the presumption of validity of the sale deed dated 03 rd
September, 1968.
30. In short, there is no reason to disbelieve the recitals contained
in the registered sale deed dated 03rd September, 1968 merely on the
ground that the document conferring power of attorney in favour of B
plaintiff no. 2 was not produced before the Trial Court.
In the instant case, the High Court was therefore right in holding
that when a document has been duly registered, there is a presumption
of correctness and it can be rebutted only by strong evidence to the
contrary. But the defendants have not led any evidence in order to rebut C
the presumption as might be drawn on the basis of the said endorsement
on the body of the sale deed No.1010394, dated 03.09.1968 accepting
original plaintiff no.2 as the attorney of the original owner, Braja Mohan
Dey. The same is a vital piece of evidence which has been ignored by
the Trial Court as well as the first Appellate Court. The High Court is
further right in holding that original plaintiff no.2 was duly nominated and D
constituted as the attorney of Braja Mohan Dey (original owner of the
suit land) and on the strength of the said power of attorney, plaintiff
No.2 transferred land in favour of himself. As the absolute owner, plaintiff
No.2 sold the said land to plaintiff No.1. Thus, plaintiff no.1 had every
right to recover the said suit land, description of which has been provided E
in the Schedule (C) of the plaint by removing and demolishing all
obstructions from the defendants. The High Court was therefore right in
decreeing the suit.
Consequently, the present appeal is dismissed. The impugned
judgment of the High Court of Tripura in Regular Second Appeal No. 01 F
of 2005, by which, the judgment and decree dated 26th August, 2004
passed in Title Appeal No. 02 of 1996 by the First Appellate Court in
Title Appeal No. 02 of 1996 affirming the dismissal of Title Suit No. 201
of 1985 by the Asst. District Judge No.1, Tripura has been set-aside, is
affirmed.
G
31. Parties are directed to bear their respective costs.
Nidhi Jain Matter referred to larger Bench.
(Assisted by : Shashwat Jain, LCRA)
H
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