Himachal Pradesh High Court
Vijay Kumar (Deceased) Through His Lrs ... vs Kamlesh And Others on 13 October, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 155 of 2008 Reserved on: 26.09.2023 Date of Decision: 13.10.2023 Vijay Kumar (deceased) through his LRs and others .
... Appellants Versus Kamlesh and others ....Respondents Coram Hon'ble Mr. Justice Rakesh Kainthla, Judge.
of Whether approved for reporting?1 Yes For the Appellants : Mr. R.K. Sharma, Senior Advocate, with Ms.Anita, Advocate.
For respondent No.1 rt : Mr.G.D. Verma, Senior Advocate, with Mr.Sumit Sharma, Advocate.
Respondents No.2(a) and 2(b) are ex parte vide order dated 07.07.2021.
Rakesh Kainthla, Judge The present appeal is directed against the judgment & decree dated 27.12.2007 passed by the learned Additional District Judge (Presiding Officer), Fast Track Court, Solan, H.P vide which, the appeal filed by the present respondents (plaintiffs before learned Trial Court) was allowed and judgment and decree dated 03.04.2007 passed by learned Civil Judge, (Junior Division), Kasauli was set aside. (Parties shall 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 16/10/2023 20:34:57 :::CIS 2hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present .
appeal are that the plaintiffs filed a Civil Suit before the learned Trial Court for seeking permanent prohibitory injunction for restraining the defendant from alienating the land comprised in Khata Khatauni No.1 min/1 min, Khasra No.198/141/79 situated of in Mauza Dhar Ki Bar, Tehsil Kasauli, District Solan (hereinafter referred to as the suit land) in any manner whatsoever. It was rt pleaded that the plaintiffs are in possession of the suit land pursuant to an agreement executed between the defendant through his General Power of Attorney-Badri Dutt and predecessor-in-interest of the plaintiffs for selling the suit land for a consideration of ₹12,000/-. The entire sale consideration was paid but the sale deed could not be executed. The defendant threatened to alienate the suit land based on the revenue entry;
hence, the suit was filed to seek the relief mentioned above.
3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability and cause of action and the suit being barred by limitation. The contents of the plaint were denied on merits. It was asserted that the defendant is the owner in possession of the suit land. Badri ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 3 Dutt was the GPA of the defendant but he has the authority to defend and contest the suit. No authority was given to GPA-
Badri Dutt to sell the suit land. The execution of the agreement to sell was not within the knowledge of the defendant. Plaintiffs .
have no right over the suit land, hence, it was prayed that the suit be dismissed.
4. A replication denying the contents of the written of statement and affirming those of the plaint was filed.
5. Learned Trial Court framed the following issues on rt 06.07.2001:
1. Whether the plaintiffs are in possession of the suit land as alleged? OPP
2. Whether any agreement made between the plaintiffs and the defendants (by attorney of defendant) and the plaintiff has paid a sum of ₹12000/- entire consideration of sale amount as per the agreement as alleged? OPP
3. Whether the plaintiff is entitled for the decree of permanent injunction, as prayed for? OPP
4. Whether the suit of the plaintiff is not maintainable in the present form as alleged? OPD
5. Whether the plaintiffs have no cause of action, as alleged? OPD
6. Whether the suit has filed within mala fide intention as alleged? OPD
7. Whether the suit is barred by limitation as alleged? OPD
8. Relief ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 4
6. The parties were called upon to produce the evidence and the plaintiffs examined Yaad Chand (PW1), Rattan Kumar Gupta (PW2) and Kamlesh Tyagi legal representative of the plaintiff (PW3). The defendant examined Girdhari Lal Power of .
attorney of the defendant (DW1).
7. An application for consolidation was filed, which was allowed on 06.12.2006 and the present suit was ordered to be of consolidated with the other suit titled Kedar Dutt versus Kamlesh Tyagi. However, the learned Trial Court passed the rt separate judgments in both the suits.
8. The Learned Trial Court held that the plaintiffs failed to prove their possession. The revenue record shows the defendant and his legal heirs to be the owners in possession of the suit land. The plaintiffs relied upon the agreement to sell executed by Badri Dutt-power of attorney of the defendant, however, the power of attorney (Ext. PW1/A) did not authorize the holder to execute any agreement to sell. The plaintiffs had no right over the suit land; hence, issues no. 2, 4 and 5 were answered in affirmative, the rest of the issues were answered in negative and the suit of the plaintiffs was dismissed.
9. Being aggrieved from the judgment and decree passed by the learned Trial Court, the plaintiffs filed an appeal, ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 5 which was decided by the learned Additional District Judge (Presiding Officer), Fast Track Court Solan. Learned First Appellate Court held that the GPA executed in favour of Badri Dutt did not authorize him to execute the sale deed; however, .
the version of the plaintiffs that their predecessor-in-interest was put in possession was duly proved by the contents of the agreement to sell, as well as, the affidavit executed by the GPA.
of The defendant did not lead any satisfactory evidence to rebut the evidence of the plaintiff. The revenue record carries with it a rt rebuttable of presumption of correctness and the presumption was rebutted by the cogent evidence. The predecessor-in-
interest of the plaintiffs was put in possession by the GPA of the defendant and the plaintiffs are entitled to protect their possession, till they are dispossessed as per the law.
10. Being aggrieved from the judgment and decree passed by the learned First Appellate Court, the present appeal has been filed asserting that the learned First Appellate Court did not properly appreciate the material placed before it.
Defendants Vijay Kumar and Govinder Kumar were physically challenged. Their sisters were married in different places. Badri Dutt misused the General Power of Attorney taking advantage of the disability of the defendants and committed fraud upon them.
No authority was conferred upon Badri Dutt to execute an ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 6 agreement to sell. Learned First Appellate Court ignored the entries in the revenue record. The plaintiffs had no title and no injunction could have been issued against the true owner;
therefore, it was prayed that the present appeal be allowed and .
judgment and decree passed by learned First Appellate Court be set aside.
11. The appeal was admitted on the following substantial of questions of law on 30.10.2008:-
1. When once it has been proved on the record that there rt was no authority to sell the land in the GPA Ex. PW1/A, whether the First Appellate Court was justified to hold that the possession was given to the plaintiffs according to the documents, agreement to sell Ex.PW2/B and affidavit Ex PW2/C, which was executed on the basis of said GPA?
2. Whether the sale deed of immovable property of worth ₹100/- or more is not compulsory registrable?
12. I have heard Sh. R.K. Sharma, learned Senior Counsel assisted by Ms. Anita, Advocate & Sh. G.D. Verma, learned Senior Counsel assisted by Mr. Sumit Sharma, learned counsel for respondent no. 1/plaintiff.
13. Sh. R.K. Sharma, learned Senior Counsel submitted that the learned First Appellate Court erred in granting the injunction. It was duly proved on record that Badri Dutt had no authority to execute an agreement to sell. Learned First Appellate Court erred in holding that the possession of the ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 7 plaintiffs was proved. This finding was contrary to the revenue record. Possession of a person is not sufficient and he has to show some right to possess the land. No injunction could have been issued against the true owner; therefore, he prayed that the .
present appeal be allowed and the judgment and decree passed by learned First Appellate Court be set aside.
14. Mr. G.D. Verma, learned Senior Counsel for the of respondent no.1/plaintiff submitted that the learned First Appellate Court erred in holding that Badri Dutt had no rt authority to execute the sale deed. The document was described as a General Power of Attorney, which confers general authority as contrasted with a Special Power of Attorney, which confers restrictive authority upon the holder. The authority to write the document was conferred which will include the execution of agreement to sell. The payment of the whole consideration amount was also proved and the learned First Appellate Court erred in ignoring this fact. Hence, he prayed that the present appeal be dismissed.
15. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
::: Downloaded on - 16/10/2023 20:34:57 :::CIS 8Substantial Question of Law No.1:-
16. Sh.G.D. Verma, learned Senior Counsel for the respondent submitted that it was not permissible for the learned .
Trial Court to pass separate judgments in the present case after having ordered the consolidation of the suit. This submission has force. It was laid down by the Hon'ble Supreme Court of India in Chitivalasa Jute Mills v. Jaypee Rewa Cement, (2004) 3 SCC of 85: 2004 SCC OnLine SC 159 that once the Court orders the consolidation of the suits, the evidence has to be led in one case rt and both the cases are to be disposed of by a common judgment.
It was observed:
"12. The two suits ought not to be tried separately.
Once the suit at Rewa has reached the court at Visakhapatnam, the two suits shall be consolidated for the purpose of trial and decision. The trial court may frame consolidated issues. The Code of Civil Procedure does not specifically speak of consolidation of suits but the same can be done under the inherent powers of the court flowing from Section 151 CPC. Unless specifically prohibited, the civil court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from a multiplicity of proceedings, delay and expenses. Complete or even substantial and sufficient similarity of the issues arising for decision in two suits enables the two suits being consolidated for trial and decision. The parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials. The evidence having been recorded, common arguments need to be addressed ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 9 followed by one common judgment. However, as the suits are two, the court may, based on the common judgment, draw two different decrees or one common decree to be placed on the record of the two suits. This is how the trial court at Visakhapatnam shall proceed consequent upon this order of transfer of suit from Rewa to the .
court at Visakhapatnam." (Emphasis supplied)
17. Therefore, the submission of Sh. G.D. Verma learned Senior Counsel for the respondents is to be accepted that the learned Trial Court was required to pass one judgment rather of than two judgments after consolidating the suit. However, no prejudice has been caused to either of the parties; therefore, the rt matter is not being remitted to the learned Trial Court for writing a fresh judgment.
18. The plaintiffs claimed that the defendant through his GPA had executed an agreement to sell in favour of their predecessor. The defendant on the other hand claimed that the GPA had no authority to execute the sale deed.
19. A copy of the GPA (Ext. PW1/D) reads that executant Kedar Dutt was busy. The disputes were pending regarding the property, which could lead to litigation. The executant would be unable to defend or pursue the litigation, hence, he appointed Badri Dutt as his General Power of Attorney and authorized him to manage Khasra Nos. 65, 66,76 & 79 in every manner, protect the interest of the executant, carry out written and oral ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 10 proceedings and produce any plaint, complaint, application, affidavit, documents before Civil, Revenue and Criminal Courts on behalf of the executant. Pursue the matter himself or through any counsel, file any suit or defend the suit by filing a written .
statement, pursue the appeal, revision or review. In nutshell, if the executant is made a party in the Civil, Criminal or Revenue Court, the Power of Attorney would appear before the Lower of Court, High Court and Supreme Court and do every written and oral act through himself or the Advocate. All the written and oral rt acts would be binding upon the executant and he will have no objection to the same.
20. A perusal of the document shows that it was executed for a specific purpose -- to pursue or defend the litigation in Civil, Criminal and Revenue Court and do all the acts which may be necessary on behalf of the executant. Mr. G.D. Verma, learned Senior Counsel for the defendants heavily relied upon the words 'written documents' and General Power of Attorney to contend that these would include the sale of the property because the sale is included in a written document.
This submission cannot be accepted. The tone and tenor of the General Power of Attorney shows that it was for a specific purpose even though it was described as a General Power of Attorney. The word 'written document' cannot be divorced from ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 11 the context to read every kind of document but can only mean the 'written documents' required in the proceedings before the Court.
.
21. It was submitted that the document (Ext. PW1/D) has been described as the General Power of Attorney, which can only be a General authority to deal with the property and not any specific authority. It was submitted that the Power of Attorney of giving a restricted authority is not called the General Power of Attorney but a Special Power of Attorney. This submission rt cannot be accepted. It was laid down by the Hon'ble Supreme Court of India in Prakash Roadlines (P) Ltd. v. Oriental Fire & General Insurance Co. Ltd., (2000) 10 SCC 64: 1999 SCC OnLine SC 132, that a document has to be interpreted not by its nomenclature but by its contents. It was observed:
"3. It is a settled law that a document has to be interpreted not by its nomenclature but what is contained in the said document. A reading of the document shows that it was a deed of assignment in favour of the Insurance Company. We are, therefore, in agreement with the view taken by the High Court."
22. A reading of the document (Ext. PW1/D) clearly shows that it was executed for a specific purpose-- to deal with the legal proceedings; therefore, the nomenclature General Power of Attorney will not enlarge its scope.
::: Downloaded on - 16/10/2023 20:34:57 :::CIS 1223. Kedar Dutt defendant filed an affidavit on 01.09.2004 before the learned Trial Court in consolidated case No.315/1 of 2006/2001. The matter was adjourned for his cross-
examination on 22.09.2004, but he was stated to be ill on that .
day. Subsequently, it was informed on 05.03.2005 that he had died. Hence, the defendant could not be cross-examined.
24. A heavy reliance was placed upon the defendant's of affidavit to submit that he had not denied the execution of any General Power of Attorney. He had not claimed any restriction rt on the alienation of the property. The absence of these facts in the affidavit can only lead to an inference that the General Power of Attorney authorised the holder to alienate the property and the plea of the defendant that the holder had no authority to dispose of the property is not acceptable. This submission cannot be accepted. It was laid down by the Hon'ble Supreme Court of India in Bank of India v. K. Mohandas, (2009) 5 SCC 313:
(2009) 2 SCC (Civ) 524: (2009) 2 SCC (L&S) 32: 2009 SCC OnLine SC 646, that true construction of a contract depends upon the import of the words used and not upon what the parties choose to say afterwards. It was observed:
"28. The true construction of a contract must depend upon the import of the words used and not upon what the parties choose to say afterwards. Nor does the subsequent conduct of the parties in the performance of the contract ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 13 affect the true effect of the clear and unambiguous words used in the contract. The intention of the parties must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. The nature and purpose of the contract is an important guide in ascertaining the .
intention of the parties.
29. In Ottoman Bank of Nicosia v. OhanesChakarian [AIR 1938 PC 26], Lord Wright made these weighty observations: (AIR p. 29) "... that if the contract is clear and unambiguous, its true effect cannot be changed merely by the course of of conduct adopted by the parties in acting under it."
30. In Ganga Saran v. Firm Ram Charan Ram Gopal [1951 SCC 1053: AIR 1952 SC 9] a four-judge Bench of this Court rt stated: (AIR p. 11, para 6) "6. ... Since the true construction of an agreement must depend upon the import of the words used and not upon what the parties choose to say afterwards, it is unnecessary to refer to what the parties have said about it."
25. Therefore, the construction put by the parties upon the document executed by them is immaterial and the Court has to see the effect of the words used in the document to construe it. Since the General Power of Attorney does not contain any authority to dispose of the property; therefore, the learned Courts below had rightly held that the General Power of Attorney did not authorize the sale of the property and the agreement to sell executed by the General Power of Attorney was not binding upon the defendant.
::: Downloaded on - 16/10/2023 20:34:57 :::CIS 1426. A similar Power of Attorney was considered by the Nand Kaur vs. Mastan Singh and Ors. MANU/PH/0559/1965, which almost read as the Power of Attorney in the present case.
The Power of Attorney was extracted by the High Court as under:
.
4. For the property understanding of the case, it is necessary to refer to the power of attorney and the sale-
deed. Exhibit D. 1 is the original power of attorney and Exhibit P. 15 is the copy. The test covers nearly 2 pages, out of which 1 1/2 pages have been devoted to giving of details of the power which may have been necessary for proper prosecution of the litigation and for effectively getting possession of the land in dispute. On the remaining 1/2 pages a portion is devoted to giving rt authority for the management of the land, after recovering its possession, and giving the same to tenants, etc., and the remaining portion contains the following words relating to the power of selling etc. "He (Mastan Singh) will have full authority to mortgage, sell or gift, or in any other way alienate the property of all types inherited by us from SmtKhomi. In other words, Mastan Singh has full power to obtain the above mentioned property by filing suits, prosecuting them and putting in replies, and the power of mortgaging, selling or gifting the land was also with the mukhtar."
27. It was held that the primary and main object of Power of Attorney was to confer an authority upon the holder to carry out litigation on behalf of the executant and her elder sisters. The Power of Attorney has to be construed strictly and ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 15 cannot be extended beyond the terms mentioned in Power of Attorney. It was observed:
10. In any case one thing is clear. The primary and the main object of the power of attorney as to authorize .
Mastan Singh to carry on litigation on behalf of Smt.Nand Kaur and her elder sister SmtKauri, and it was urged on behalf of the appellant that even if there was an authority given to the mukhtar to sell or mortgage the land, such an authority must be taken in the context of the purpose for which the power of attorney was given, which was either to obtain land by fighting litigation or thereafter to of manage it, and in as much as, there is not even a suggestion that the present sale was necessitated either because of the litigation or for the purpose of proper management of the land, the mukhtar had no authority to rt sell the land. It was pointed out that although in the sale deed some effort was made to show that there was necessity for the sale, i.e. for payment of the expenses of the suit and for the purchase of the bullocks, cart and other land, yet according to the written statement, the real reason or selling the land was that Smt.Nand Kaur wanted to turn the land into cash. I feel that there is a good deal of force in this argument. Reference was also made in this connection to Smt. Jan v. Smt.Fajjan, MANU/LA/0353/1937 : AIR 1938 Lah 351, the fact of which are very near to the present case. The head-note runs as follows:
"One of the rules of construction of a power of attorney is that where authority is given to do particular acts, followed by general words, the general words are restricted to what is necessary for the proper performance of the particular acts. A executed a power of attorney in favour of B whereby B was entrusted with the management of A's property, as A was married and could not look after her estate. Power to mortgage and sell the property was also mentioned in the deed. B sold the property although there was no necessity of the sale for the purpose of management of the property.
"Held that B was only authorised to sell the property when it was necessary for the purpose of the ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 16 management of the property. As there was no necessity for the sale, the sale could not be upheld."
11. For coming of this decision reliance was placed by the learned Judge on Article 34 in Bowstead on Agency, Edition 6, which was to the following effect: -
.
"Power of attorney must be strictly pursued, and construed as giving only such authority as they confer expressly or by necessary implication. The following are the most important rules of construction: (1) The operative part of he deed is controlled by the recitals. (2) Where authority is given to do particular acts, followed by general words, the general words be restricted to what is of necessary for the proper performance of the particular acts."
rt
12. In the present case there can be no possible doubt that the main purpose of executing the power of attorney was to fight litigation and subsequent management and consequently this power, which is followed by general words, must be construed to have been given for these two purposes. On this ground alone, therefore, Mastan Singh had no authority to sell the property to his own sons when such a thing was not at all necessary for the purpose of litigation or management.
28. Similarly, it was laid down in Raj Kumar v. Rohtash, 2010 SCC OnLine P&H 13225 that the Power of Attorney has to be construed strictly and when authority was given to deal with the property, the holder does not have any right to create tenancy.
It was observed.
"10. The first question involved which requires determination is the re-appreciation of power of attorney which is alleged to have been misread by the Appellate Court Although in second appeal, the High Court is not ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 17 obliged to re-appreciate the facts but when the entire edifice has been built by the plaintiff on the basis of the General Attorney (Ex. P10), I think it requires to be at least read to find out as to whether Indrawati had given her power to Inder Singh to deal with her tenancy rights as well. On a perusal of document (Ex. P10), I have found that .
Indrawati had only given her rights to Inder Singh to deal with her immovable or movable property standing in her name and nothing beyond that. She even did not give any right to Inder Singh to deal with the tenancy rights much less the rights of her minor son in the tenanted premises. Thus, in my view the document has been rightly appreciated by the first Appellate Court. Inder Singh had of no competence to enter into a compromise with the plaintiff on the strength of General Attorney (Ex. PIO). Thus, once the very basis of the exercise of power goes, the order of AC 1st Grade on which the plaintiff is relying rt upon, becomes redundant."
29. Similarly, the Hon'ble Supreme Court held in Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, (2012) 1 SCC 656 that the Power of Attorney is governed by Contract Act and the agent derives the authority from the same. It was observed:
"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 Act, 1882). It is revocable or terminable at any time unless it is 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. BasantNahata [(2005) 12 SCC 77] this Court held: (SCC pp. 90 & 101, paras 13 & 52) ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 18 "13. A grant of power of attorney is essentially governed by 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 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.
of
30. It was held in Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, rt (2012) 8 SCC 706, that the Power of Attorney has to be strictly construed and a power of agreement to sell or effect a sale should be specifically conferred upon the agent by the principal.
It was observed:
19. Next, we have to consider the power of attorney. It is settled that a power of attorney has to be strictly construed. In order to agree to sell or effect a sale by a power of attorney, the power should also expressly authorise the power to agent to execute the sale agreement/sale deed i.e. (a) to present the document before the Registrar; and (b) to admit execution of the document before the Registrar. A perusal of the power of attorney, in the present case, shows that it only authorises certain specified acts but not any act authorising entering into an agreement of sale or to execute sale deed or admit execution before the Registrar.
20. In a recent decision of this Court in Suraj Lamp and Industries (P) Ltd. (2) v. State of Haryana [(2012) 1 SCC 656 :
(2012) 1 SCC (Civ) 351] , the scope of the power of attorney has been explained in the following words: (SCC pp. 666-
67, paras 20-21) ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 19 "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 .
Act, 1882). It is revocable or terminable at any time unless it is 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. BasantNahata [(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 Chapter X of the Contract Act. By reason of a deed of 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 rt person. A deed of power of attorney is executed 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.
***
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 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 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."
21. It is clear that from the date the power of attorney is executed by the principal in favour of the agent and by virtue of the terms, the agent derives a right to use his name and all acts, deeds and things done by him are subject to the limitations contained in the said deed. It is ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 20 further clear that the power-of-attorney holder executes a deed of conveyance in exercise of the power granted under it and conveys title on behalf of the grantor.
22. In the case on hand, though the plaint avers that the second defendant is the agreement-holder of the first defendant, the said agreement is not produced. It was also pointed out that the date of agreement is also not given in .
the plaint. We have already mentioned Forms 47 and 48 of Appendix A and failure to mention the date violates the statutory requirement and if the date is one which attracts the bar of limitation, the plaint has to conform to Order 7 Rule 6 and specifically plead the ground upon which exemption from limitation is claimed. It was rightly pointed out on the side of the appellant that in order to get over the bar of limitation all the required of details have been omitted.
31. Similar view was taken in Devkubai N. Mankar v.
rt Rajesh Builders, 1996 SCC OnLineBom 318, wherein it was held:
9. We may now turn to the facts of the instant case. Here, the attorney Mr. Patil was authorised to negotiate for the sale of the properties of Mr. Warli. This authority was conferred on him with a view to removing doubt, because the power of attorney was basically for the management of the properties, and in the absence of such an authority, it would not have been permissible for Mr. Patil to negotiate for the sale of the properties. Otherwise also, nobody would have liked to negotiate the sale or purchase of a property belonging to somebody else with a person who has no authority, express or implied, to do so.
Obviously, it was only with a view to enabling the attorney Mr. Patil to find out the best available price and terms and conditions for the sale of the properties in question that it was made clear in clause 17 of the power of attorney that in addition to the authority to manage the properties and to take all steps necessary or incidental thereto, he had also the authority to negotiate with the intending purchasers for the sale of the same. Such an authority cannot be construed as meaning authority to dispose of the properties or to enter into an agreement for the sale of the same. We are, therefore, of the clear opinion that Mr. Patil had no authority to enter into an agreement for the sale of the properties of Mr. Warli on the basis of which he could confer on the respondent No. 1 a right to claim specific performance of such agreement ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 21 and to compel the owner to execute deed of sale of the property in their favour.
10. It is pertinent to note that in the instant case it is not the case of respondent No. 1 that they had seen the power of attorney and on a reading of clause 17 thereof, they got an impression that Mr. Patil was authorised to enter into an agreement for the sale of the property of Mr. Warli. On .
the other hand, the admitted position is that they had never seen the power of attorney, nor had they made any effort to know whether Mr. Patil, with whom they were entering into the agreement of sale, had any authority to sell the property belonging to Mr. Warli. Reliance on clause 17 of the power of attorney was sought to be placed by the respondent No. 1 only when the said power of attorney was filed in the court by the appellants in of support of their case that Mr. Patil had no authority to enter into an agreement for the sale of the properties. There can be no dispute about the fact that a person competent to transfer can only transfer interest in the rt property. Section 7 of the Transfer of Property Act clearly provides that every person competent to contract and entitled to transferable property or "authorised to dispose of transferable property not his own" is competent to transfer such property. In the instant case, Mr. Patil had no authority to transfer the property of Mr. Warli nor to enter into an agreement for sale thereof. The agreement for sale entered into by the respondent No. 1 with Mr. Patil, therefore, cannot confer any right on them to claim the execution of the sale of the property of Mr. Warli on the basis of such an agreement of sale.
32. Thus, it is apparent from these judgments that the Power of Attorney has to be construed strictly and the agent cannot derive any power, which has not been conferred by the principal upon him by implication or extension. Since in the present case, no power was conferred to sell the property or to enter into agreement to sell, therefore, learned Courts below had rightly held that the Subhash Chand will not get any right in the suit land.
::: Downloaded on - 16/10/2023 20:34:57 :::CIS 2233. The learned Trial Court proceeded to dismiss the suit after holding that the General Power of Attorney did not authorize the sale of the property; however, the learned First Appellate Court held that the possession was delivered by the .
General Power of Attorney and the remedy of the defendant was to take possession as per the law. The findings recorded by learned First Appellate Court are sustainable.
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34. The agreement to sell (Ext PW2/B) specifically mentioned that the possession was delivered to Subhash Chand rt through the General Power of Attorney. An affidavit executed by Badri Dutt, the General Power of Attorney (Ext. PW2/A) also mentions that the General Power of Attorney had received the whole of the amount and had delivered the possession to Subhash Chand. Badri Dutt, the General Power of Attorney did not appear in the witness box. He was the best person to say whether the possession was delivered by him to the defendant or not. Girdhari Lal, General Power of Attorney of the defendant admitted in his cross-examination that Kedar Dutt had executed a Power of Attorney in favour of Badri Dutt. He did not know that Kedar Dutt had sold the suit land to Subhash Chand in the capacity of General Power of Attorney. He did not know that the site plan was prepared at the time of execution of the agreement.
He did not know that Kamlesh Tyagi was the owner in ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 23 possession of the suit land. The cross-examination of this witness clearly shows that he has not specifically denied the possession of Kamlesh Tyagi. The learned First Appellate Court had rightly held in these circumstances that the plea of the .
plaintiffs that they were in possession was highly probable. It was laid down by Hon'ble Supreme Court in Gurnam Singh v.
Lehna Singh, (2019) 7 SCC 641 : (2019) 3 SCC (Civ) 709: 2019 SCC of OnLine SC 374, that where the First Appellate Court had appreciated the facts, it is not permissible for the High Court to rt interfere with the findings of fact in second appeal under Section 100 of CPC. It was observed:
"15. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has erred in reappreciating the evidence on record in the second appeal under Section 100 CPC. The High Court has materially erred in interfering with the findings recorded by the first appellate court, which were on reappreciation of evidence, which was permissible by the first appellate court in the exercise of powers under Section 96 CPC.
Cogent reasons, on appreciation of the evidence, were given by the first appellate court. The first appellate court dealt with, in detail, the so-called suspicious circumstances which weighed with the learned trial court and thereafter it came to the conclusion that the will, which as such was a registered will, was genuine and did not suffer from any suspicious circumstances. The findings recorded by the first appellate court are reproduced hereinabove. Therefore, while passing the impugned judgment and order [Lehna Singh v. Gurnam Singh, Civil Regular Second Appeal No. 2191 of 1985, order dated 27-11-2007 (P&H)], the High Court has exceeded its ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 24 jurisdiction while deciding the second appeal under Section 100 CPC."
35. Similar is the judgment in Tapas Kumar Samanta v.
Sarbani Sen, (2015) 12 SCC 523 : (2016) 1 SCC (Civ) 482: 2015 SCC .
OnLine SC 114, wherein it was held:
"14. Evidence being also on record, relationship which was the only dispute raised by the defendant without disputing the other pleadings about personal necessity of of the plaintiff or non-payment of arrears of rent by the defendant having been established, we are of the view that the High Court was not correct in entertaining the second appeal by interfering with the finding of fact rt arrived at by the appellate court. The finding of the appellate court being based on evidence, the High Court erred in interfering with the judgment and decree passed by the appellate court while deciding a second appeal under Section 100 CPC."
36. Similarly it was held in Lisamma Antony v.
Karthiyayani, (2015) 11 SCC 782, that it is impermissible to interfere with the findings of fact under section 100 of CPC. It was held:
"11. It is a settled principle of law that a second appeal under Section 100 of the Code of Civil Procedure, 1908, cannot be admitted unless there is a substantial question of law involved in it. As to what is a substantial question of law, in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722], this Court has explained the position of law as under : (SCC pp. 725-26, para 6) "6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 25 merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial .
question of law in a second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the of second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of rt procedure requiring interference in the second appeal."
12. In view of the above position of law, the question formulated by the High Court in the present case, as quoted above, cannot be termed to be a question of law, much less a substantial question of law. The above question formulated is nothing but a question of fact. Merely for the reason that on appreciation of evidence another view could have been taken, it cannot be said that the High Court can assume the jurisdiction by terming such a question as a substantial question of law.
13. Having gone through the impugned order challenged before us and after considering the submissions of the learned counsel for the parties, we are of the view that the High Court has simply re-appreciated the evidence on record and allowed the second appeal and remanded the matter to the trial court."
37. Similar view was taken in Narendra v. Ajabrao, (2018) 11 SCC 564, wherein it was observed:-
"17. In the first place, we find that the High Court decided the second appeal like a first appeal under Section 96 of the Code in as much as the High Court went on ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 26 appreciating the entire oral evidence and reversed the findings of fact of the first appellate court on the question of adverse possession. Such an approach of the High Court, in our opinion, was not permissible in law.
18. Second, the High Court failed to see that a plea of adverse possession is essentially a plea based on facts and .
once the two courts, on appreciating the evidence, recorded that a finding may be of reversal, such finding is binding on the second appellate court. It is more so as it did not involve any question of law much less substantial question of law. This aspect of law was also overlooked by the High Court.
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19. Third, the High Court has the jurisdiction, in appropriate cases, to interfere in the finding of fact provided such finding is found to be wholly perverse to the extent that no judicial person could ever record such rt finding or when it is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law and empower the High Court to interfere. However, we do not find any such error here."
38. It was held in Ramathal v. Maruthathal, (2018) 18 SCC 303 that it is not appropriate for the High Court to disturb the concurrent findings of fact by re-appreciating the evidence and its jurisdiction is confined to the substantial question of law. It was observed:-
"13. It was not appropriate for the High Court to embark upon the task of reappreciation of evidence in the second appeal and disturb the concurrent findings of fact of the courts below which are the fact-finding courts. At this juncture, for better appreciation, we deem it appropriate to extract Sections 100 and 103 CPC, which reads as follows:
"100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 27 shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte.
.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
of (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does rt not involve such question:
***
103. Power of High Court to determine issues of fact.-- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal--
(a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
14. A clear reading of Sections 100 and 103 CPC envisages that a burden is placed upon the appellant to state in the memorandum of grounds of appeal the substantial question of law that is involved in the appeal, then the High Court being satisfied that such a substantial question of law arises for its consideration has to formulate the questions of law and decide the appeal. Hence, a prerequisite for entertaining a second appeal is a substantial question of law involved in the case which has to be adjudicated by the High Court. It is the intention of the legislature to limit the scope of a second appeal only when a substantial question of law is involved and the ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 28 amendment made to Section 100 makes the legislative intent more clear that it never wanted the High Court to be a fact-finding court. However, it is not an absolute rule that the High Court cannot interfere in a second appeal on a question of fact. Section 103 CPC enables the High Court to consider the evidence when the same has been wrongly .
determined by the courts below on which a substantial question of law arises as referred to in Section 100. When appreciation of evidence suffers from material irregularities and when there is perversity in the findings of the court which are not based on any material, the court is empowered to interfere on a question of fact as well. Unless and until there is absolute perversity, it of would not be appropriate for the High Courts to interfere in a question of fact just because two views are possible; in such circumstances, the High Courts should restrain itself from exercising the jurisdiction on a question of rt fact.
15. When the intention of the legislature is so clear the courts have no power to enlarge the scope of Section 100 for whatsoever reasons. Justice has to be administered in accordance with the law. In the case on hand, the High Court has exceeded its jurisdiction by reversing the well- considered judgment of the courts below which is based on cogent reasoning. The learned Judge ought not to have entered the arena of reappreciation of the evidence, hence the whole exercise done by the High Court is beyond the scope and jurisdiction conferred under Section 100 CPC."
39. Similarly, it was held in C. Doddanarayana Reddy v. C. Jayarama Reddy, (2020) 4 SCC 659 that the High Court cannot interfere with the concurrent findings of fact unless there is perversity or the same is de hors the evidence led before the Courts:
"25. The question as to whether a substantial question of law arises has been a subject matter of interpretation by this Court. In the judgment in Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [Karnataka Board ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 29 of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343], it was held that findings of the fact could not have been interfered with in the second appeal. This Court held as under : (SCC pp. 347-48, paras 12-15) "12. This Court had repeatedly held that the power of the High Court to interfere in a second appeal .
under Section 100 CPC is limited solely to deciding a substantial question of law if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
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13. In Ramanuja Naidu v. V. Kanniah Naidu [Ramanuja Naidu v. V. Kanniah Naidu, (1996) 3 SCC 392], this Court held : (SCC p. 393) rt 'It is now well settled that concurrent findings of fact of the trial court and the first appellate court cannot be interfered with by the High Court in the exercise of its jurisdiction under Section 100 of the Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.'
14.In Navaneethammal v. ArjunaChetty [Navaneethammal v. Arjuna Chetty, (1996) 6 SCC 166] , this Court held : (SCC p.
166) 'Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.'
15. And again in Taliparamba Education Society v.
Moothedath MallisseriIllath M.N. [Taliparamba Education ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 30 Society v. Moothedath MallisseriIllath M.N., (1997) 4 SCC 484], this Court held : (SCC p. 486, para 5) '5. ... The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact, which is impermissible."
.
40. This position was reiterated in State of Kerala v.
Joseph, 2023 SCC OnLine SC 961, wherein it was held:
18. A perusal of the judgment impugned does not reflect any question of law, either substantial or "involving in of the case" to have been framed by the Court in the Second Appeal. Section 100, of CPC jurisdiction is not akin to the jurisdiction conferred under Section 96 of CPC wherein it is open for the Court to consider both questions of fact rt and law. This jurisdiction is exercisable only when the Court is convinced that the dispute at hand involves a substantial question of law, and proceeding under this jurisdiction sans framing questions of such nature renders the proceedings to be "patently illegal."
[Umerkhan v. Bismillabi (2011) 9 SCC 684 (two-Judge Bench)
19. Recently, a Bench of two learned Judges in Singaram v. Ramanathan Civil Appeal No. 4939 of 2021 held as under:
"This is undoubtedly subject to various well-known exceptions which, however, cannot permit the Second Appellate Court to interfere with the findings of fact as a matter of course. Such restrictions are placed on the High Court in order that there is finality to litigation at a particular level in the hierarchy of Courts. The limitation on the exercise of power by the High Court in the Second Appeal interfering with the judgment of the First Appellate Court is premised on high public policy. This limitation is sought to be secured by insisting upon the requirement that a Second Appeal is considered only when there is a substantial question of law. Therefore, the existence of substantial question of law and the judgment which revolves ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 31 around answering the substantial questions of law are not mere formalities. They are meant to be adhered to."
(Emphasis supplied)
41. Similarly, it was held in Nazir Mohamed v. J. Kamala, .
(2020) 19 SCC 57: 2020 SCC OnLine SC 676, that it is not permissible for the High Court to interfere with the appreciation of evidence unless there is some perversity and its jurisdiction is restricted to substantial questions of law alone. It was observed:
of "22. A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by rt statute. A second appeal only lies on a substantial question of law. If the statute confers a limited right of appeal, the court cannot expand the scope of the appeal.
It was not open to the respondent-plaintiff to reagitate facts or to call upon the High Court to reanalyse or reappreciate evidence in a second appeal.
23. Section 100 CPC, as amended, restricts the right of second appeal, to only those cases, where a substantial question of law is involved. The existence of a "substantial question of law" is the sine qua non for the exercise of jurisdiction under Section 100 CPC.
24. The High Court framed the following questions of law : (Nazir Mohamed case [Nazir Mohamed v. Jambarlal Jain, 2008 SCC OnLine Mad 1383], SCC OnLine Mad para
6) "6. ... '1. Whether the lower appellate court is right in refusing the relief of possession especially when the lower appellate court granted a relief of mesne profits till delivery of possession?
2. Whether the lower appellate court is right in holding that the plaintiff is entitled to a declaration in respect of half of the suit property overlooking the pleadings and the documents of title in the instant case?'"
::: Downloaded on - 16/10/2023 20:34:57 :::CIS 3225. On behalf of the appellant-defendant, it has strenuously been contended, and in our view, with considerable force, that there was no question of law involved in either of the second appeals, far less any substantial question of law, to warrant the interference of the High Court in Second Appeal No. 64 of 2000.
.
26. The principles for deciding when a question of law becomes a substantial question of law, have been enunciated by a Constitution Bench of this Court in Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg.
Co. Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314], where this Court held :
(AIR p. 1318, para 6) of "6. ... The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general rt public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
27. In Hero Vinoth v. Seshammal [Hero Vinoth v.
Seshammal, (2006) 5 SCC 545], this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545] are set out hereinbelow : (SCC p. 554, para 21) "21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 33 qualifying "question of law", means-- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen .
not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial of question of law of general importance. In Guran Ditta v. Ram Ditta [GuranDitta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235: AIR 1928 PC 172] the phrase "substantial question of law" as it was rt employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case.
In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v.
Noony Veeraju [Rimmalapudi- Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100: AIR 1951 Mad 969] : (Chunilal cas [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314], AIR p. 1318, para 5) '5. ... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand, if the question was practically covered by the decision of the highest court or if the general principles to be applied in ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 34 determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.'"
28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land .
or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.
29. To be a question of law "involved in the case", there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable of findings of fact, arrived at by courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.
30. Where no such question of law, nor even a mixed rt question of law and fact was urged before the trial court or the first appellate court, as in this case, a second appeal cannot be entertained, as held by this Court in Panchugopal Barua v. Umesh Chandra Goswami [Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713].
31. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari [Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179].
32. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in a second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in V. Ramachandra Ayyar v. Ramalingam Chettiar [V. Ramachandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302]. An entirely new point, raised for the first time, ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 35 before the High Court, is not a question involved in the case, unless it goes to the root of the matter.
33. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
33.1. An inference of fact from the recitals or contents of a document is a question of fact, but the .
legal effect of the terms of a document is a question of law. The construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is a misconstruction of a document or a wrong application of a principle of law in construing a of document, it gives rise to a question of law. 33.2. The High Court should be satisfied that the case involves a substantial question of law and not a mere question of law. A question of law having a rt material bearing on the decision of the case (that is, a question, or answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
33.3. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
33.4. The general rule is, that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where : (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 36 cast the burden of proof. A decision based on no evidence does not refer only to cases where there is a total dearth of evidence, but also refers to cases, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
42. A heavy reliance was placed upon the copy of .
Jamabandies (Ext. PW1/B and PW1/C). However, the entries in the Jamabandies carry with them a rebuttable presumption. The evidence of the defendant was insufficient to rebut this of presumption as noticed above. Therefore, the reliance could have been placed upon the entries of the jamabandi alone to rt hold that the defendant was in possession of the suit land.
43. In the present case, the finding regarding the possession is a pure question of fact and is duly supported by the averments made in the agreement to sell as well as, the affidavit executed by General Power of Attorney and they cannot be called to be perverse. Hence, it is not possible to interfere with the findings of fact recorded by learned First Appellate Court that plaintiffs are in possession.
44. It was submitted that the possession of a person has to be lawful possession and the possession without any authority cannot be protected. This submission cannot be accepted. It was laid down by Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769: 2003 SCC OnLine SC 1398, that a person ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 37 in settled possession cannot be dispossessed except as per the law. It was observed:
"4. It is contended by the learned counsel for the defendant-appellant that the suit filed by the plaintiff .
was based on his title. The suit itself was defective inasmuch as declaration of title was not sought for though it was in dispute. Next, it is submitted that if the suit is based on title and if the plaintiff failed in proving his title, the suit ought to have been dismissed without regard to the fact that the plaintiff was in possession and whether the defendant had succeeded in proving of his title or not. We find no merit in both these submissions so made and with force.
5. Salmond states in Jurisprudence (12th Edn.), rt "few relationships are as vital to man as that of possession, and we may expect any system of law, however primitive, to provide rules for its protection.... Law must provide for the safeguarding of possession. Human nature being what it is, men are tempted to prefer their own selfish and immediate interests to the wide and long-term interests of society in general. But since an attack on a man's possession is an attack on something which may be essential to him, it becomes almost tantamount to an assault on the man himself; and the possessor may well be stirred to defend himself with force. The result is violence, chaos and disorder." (at pp. 265-66) "In English law possession is a good title of right against anyone who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 38 takes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every .
possessor shall be entitled to retain and recover his possession until deprived of it by a judgment according to law." (Salmond, ibid., pp. 294-95) "Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished of as proprietary. In modern and medieval civil law, the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit)." (Salmond, ibid., p. 295) rt
6. The law in India, as it has developed, accords with the jurisprudential thought as propounded by Salmond. In Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy [AIR 1924 PC 144: 51 IA 293] Sir John Edge summed up the Indian law by stating that in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court.
7. The thought has prevailed incessantly, till date, the last and latest one in the chain of decisions being Ramesh Chand Ardawatiya v. Anil Panjwani [(2003) 7 SCC 350]. In between, to quote a few out of several, in Lallu Yeshwant Singh v. Rao Jagdish Singh [AIR 1968 SC 620 :
(1968) 2 SCR 203] this Court has held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy has expired. The Court turned down the submission that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to court and obtain an order for possession before he could eject the lessee. The Court quoted with approval the law as stated by a Full Bench of the Allahabad High Court in YarMohd. v. Lakshmi Das [AIR 1959 All 1: 1958 All LJ 628 (FB)] (AIR at p. 4):::: Downloaded on - 16/10/2023 20:34:57 :::CIS 39
"Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause." (AIR p. 5, para 13) .
In the oft-quoted case of Nair Service Society Ltd. v. K.C. Alexander [AIR 1968 SC 1165 : (1968) 3 SCR 163] this Court held that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. When the facts disclose no title in either party, possession of alone decides. The Court quoted Loft's maxim -- "Possessio contra omnes valet praetereur cui ius sit possessionis (he that hath possession hath right against all but him that hath the very right)" and said:
rt (AIR p. 1175, para 20) "A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff's and thus be able to raise a presumption prior in time."
In M.C. Chockalingam v. V. Manickavasagam [(1974) 1 SCC 48] this Court held that the law forbids forcible dispossession, even with the best of title. In Krishna Ram Mahale v. Shobha Venkat Rao [(1989) 4 SCC 131] it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika, Jind v. Jagat Singh [(1995) 3 SCC 426] this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 40 averment of previous possession of the plaintiff and dispossession by the defendant.
8. It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep .
out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to the law; he cannot take the law in his own hands and of evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, rt and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation) if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. The law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser just entered into would not be called as one acquiesced to by the true owner.
9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Admn. [AIR 1968 SC 702 : (1968) 2 SCR 455: 1968 Cri LJ 806], Puran Singh v. State of Punjab [(1975) 4 SCC 518:
::: Downloaded on - 16/10/2023 20:34:57 :::CIS 411975 SCC (Cri) 608] and Ram Rattan v. State of U.P. [(1977) 1 SCC 188: 1977 SCC (Cri) 85] The authorities need not be multiplied. In Munshi Ram case [AIR 1968 SC 702 :
(1968) 2 SCR 455: 1968 Cri LJ 806] it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled .
possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, of extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner rt may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh case [(1975) 4 SCC 518: 1975 SCC (Cri) 608] the Court clarified that it is difficult to lay down any hard-
and-fast rule as to when the possession of a trespasser can mature into settled possession. The "settled possession" must be (i) effective, (ii) undisturbed, and
(iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession" does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of "settled possession" (SCC p. 527, para 12):
::: Downloaded on - 16/10/2023 20:34:57 :::CIS 42(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and .
which contains an element of animus possidendi.
The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser must be complete and final and of must be acquiesced to by the true owner; and
(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the rt trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession.
10. In the cases of Munshi Ram [AIR 1968 SC 702 : (1968) 2 SCR 455: 1968 Cri LJ 806] and Puran Singh [(1975) 4 SCC 518: 1975 SCC (Cri) 608] the Court has approved the statement of law made in Horam v. R. [AIR 1949 All 564:
50 Cri LJ 868] wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter may be dispossessed by the true owner only by having recourse to the due process of law for reacquiring possession over his property.
11. In the present case the trial court has found the plaintiff as having failed in proving his title.
Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The ::: Downloaded on - 16/10/2023 20:34:57 :::CIS 43 trial court, therefore, left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The trial court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a .
suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property."
45. Therefore, the learned First Appellate Court had rightly protected the possession of the plaintiffs. Hence, this of substantial question of law is answered accordingly.
Substantial question of law no.2:-
46. rt The agreement to sell did not confer any title but only a right to get the sale deed executed. Such a document was not compulsorily required to be registered, in view of the explanation of Section 17 of the Registration Act, as it existed on the date of the execution of the agreement. Therefore, this substantial question of law does not arise in the present case.
Final Order:
47. In view of the above, the present appeal fails and the same is dismissed. Pending application(s), if any shall also stand disposed of.
(Rakesh Kainthla) Judge 13th , October 2023 (saurav pathania) ::: Downloaded on - 16/10/2023 20:34:57 :::CIS