Bombay High Court
Pravin Bhaskarrao Borkute vs Smt. Kavita Wd/O Nagesh Ambhore on 24 August, 2017
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No.387 of 2013
Pravin Bhaskarrao Borkute,
aged about 50 years,
occupation - business,
resident of Plot No. R-20,
Laxmi Nagar, Nagpur. ..... Appellant
Defendant
Versus
Smt. Kavita widow of Nagesh
Ambhore,
aged about 55 years,
occupation - service,
resident of 48,
Doctors' Colony,
Chhatrapati Nagar,
Nagpur. ..... Respondent
*****
Mr. R. M. Sharma, Adv., for the appellant.
Mr. Masood Shareef, Adv., for respondent.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 24th August, 2017
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ORAL JUDGMENT:
01. This appeal under Section 100 of the Civil Procedure Code, 1908, is preferred by the original defendant who is aggrieved by the decree passed by the trial Court by which the respondent-plaintiff has been declared to be the owner of the suit property and the appellant has been restrained from obstructing her possession or creating third- party rights therein.
02. It is the case of the plaintiff that Khasra No. 58/1-K admeasuring about 10.8 acres situated at Mouza - Somalwada, Tq. & Distt. Nagpur, was owned by her father. After the death of her father - Bhaskarrao, he was survived by his widow, two sons and four daughters. A family settlement was arrived at on 1st June, 1987 by which the aforesaid property was equally divided amongst the legal heirs. Each member of the family became owner of 1/7th share. The plaintiff was allotted 0.63 Are land from aforesaid property. Each legal heir was placed in possession of his/her respective shares. According to the plaintiff, the said property was the subject-matter of proceedings under the Urban Land Ceiling Act, 1984. For prosecuting those proceedings, a Power of Attorney was executed by the family members in favour of the defendant on 15th May, 1998. Thereafter, ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:43:33 ::: sa387.13 3 on 21st December, 1998, a portion of the aforesaid land was declared as surplus, while the remaining portion was declared as retainable land. On 1st February, 1999, the plaintiff along with her sisters and mother entered into an Agreement of Development & Sale with the defendant who was the proprietor of M/s. Pravin Bhaskarrao Borkute, Civil Engineer & Contractor. As per this agreement, the defendant agreed to pay a sum of Rs. 12,50,000/- to each of his sisters. In addition, it was agreed that he would provide a developed plot admeasuring 10,000 sq. ft., to each of his sisters. This was the agreed consideration for the 1/7th share of the plaintiff. Thereafter, the defendant allotted Plot No. R-5 admeasuring about 10,850.10 sq.ft., from the aforesaid property to the plaintiff. Though the amount of Rs.12,50,000/- was paid to the plaintiff, the subsequent part of consideration with regard to providing a developed plot admeasuring about 10,000 sq.ft., was not complied with. The plaintiff learnt that the defendant on the basis of the Power of Attorney granted to him was intending to alienate part of the suit property. Hence, after issuing notice on 6th May, 2003 and revoking the Power of Attorney, she filed a suit for declaration that she was the owner of the suit property and the defendant had no right to deal with the same, in any manner, whatsoever. A perpetual injunction to protect her possession and for restraining the defendant from creating third-party rights was also ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:43:33 ::: sa387.13 4 sought.
03. The defendant filed his Written Statement and did not deny the Agreement of Development & Sale dated 1st February, 1999. According to him, on 28th November, 2001, the plaintiff had received entire consideration on account of which she had issued a receipt. The plaintiff was not in possession and had, in fact, sought the same as per the letter dated 20th November, 2002. It was then denied that Plot No. R-5 was allotted to the plaintiff or that she was put in possession of the same. According to the defendant, the Power of Attorney as granted was irrevocable and hence, the relief as sought in the suit was not liable to be granted.
04. After the parties led evidence, the trial Court held that the plaintiff had proved her title to the suit property and that she was in lawful possession of the same. It was held that the Power of Attorney could be revoked and that the plaintiff had received only part consideration of Rs. 12,50,000/-. On that basis, the trial Court decreed the suit and granted the prayer as made.
05. In the appeal filed by the defendant, the appellate Court confirmed these findings and dismissed the appeal. Being aggrieved, ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:43:33 ::: sa387.13 5 the defendant has filed the present appeal.
06. The following substantial questions of law were framed while admitting the Second Appeal:-
"1. Whether the first Appellate Court erred in law in confirming the finding recorded as to lawful title of the plaintiff as also possession when the prayer in the suit was for declaration and injunction?
2. Whether the first Appellate Court erred in confirming the finding in the context of the submission that the suit was not maintainable?
3. Whether the impugned Judgment and Order suffers from perversity?"
07. Shri R. M. Sharma, learned counsel for the appellant, submitted that both the Courts committed an error in holding that the plaintiff had lawful title to the suit property and that she was in possession of the same. As per the agreement at Exh.53, the consideration was paid to the plaintiff and in lieu thereof, the plaintiff did not have a lawful title over the suit property. It was submitted that in view of provisions of Section 202 of the Contract Act, 1872, the ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:43:33 ::: sa387.13 6 Power of Attorney at Exh.66 was not revocable. By virtue of the agreement at Exh.53, an interest was created in favour of the defendant and, therefore, the Power of Attorney was irrevocable. According to him, the plaintiff was not in possession of Plot No. R-5 which could be seen from the letter issued by her at Exh.72 calling upon the defendant to put her in possession. It was, thus, submitted that as the plaintiff was in possession, the suit for declaration simiplicitor was not maintainable. The Courts committed an error by relying upon stray sentences in the reply at Exh.83 for holding that the plaintiff had title to the suit property and was also in possession. It was then submitted that Plot No. R-5 was never allotted to the plaintiff. The document at Exh.77 was not prepared by the competent Authority that could have allotted the said plot and this fact was clear from the deposition of PW 2 examined by the plaintiff. It was, thus, submitted that by virtue of the agreement at Exh. 53, coupled with the Power of Attorney at Exh.66, the defendant was in possession and he was entitled to protect the same in view of provisions of Section 53A of the Transfer of Property Act. In support of his submissions, the learned counsel placed reliance on the decisions in [1] Seth Loon Karan Sethiya Vs. Ivan E. John & others [AIR 1969 SC 73], and [2] Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar Vs. Chandran & others [(2017) 3 SCC 702]. It was, ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:43:33 ::: sa387.13 7 thus, urged that the findings recorded by both the Courts being perverse, they were liable to be set aside.
08. Per contra, Shri Masood Shareef, learned counsel for the plaintiff, supported the impugned judgments. According to him, the findings sought to be challenged by the defendant were pure findings of fact. The question as to whether the plaintiff was in possession was again a question of fact which had been answered by both the Courts in favour of the plaintiff. It was submitted that these concurrent findings of fact were not open for scrutiny nor they were liable to be disturbed in the Second Appeal. For said purpose, the learned counsel placed reliance on the decisions in [1] Mohan Lal Vs. Nihal Singh [AIR 2001 SC 2942], [2] Muslim Jamath of Eachampatti Vs. Rahamtullah Shuttari & others [(2005) 10 SCC 160], and [3] Bhuri Bai & others Vs. Ramnarayan & others [(2009) 4 SCC 56]. It was then submitted that the finding recorded by both the Courts that the plaintiff was in possession was a correct finding based on various documents on record. He referred to the deposition of the defendant that Plot No. R-5 had been allotted to the plaintiff. From the other documents at Exhs.54, 77, 78 and 79, it was clear that it was the plaintiff who was in possession. After the orders were passed in the proceedings under the Urban Land Ceiling Act, 1984, the surplus land ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:43:33 ::: sa387.13 8 vested with the State Govt., and, therefore, it could not be said that the defendant was in exclusive possession. The ownership was with the plaintiff and other parties who had entered into the Development Agreement at Exh.53 as Party No.1. Only the rights of developing the property and thereafter selling the same were conferred on the defendant, but this was subject to payment of the entire consideration. Only part consideration of Rs.12,50,000/- was paid. The plaintiff was not put in possession of 10,000 sq. ft. developed land as was agreed. Hence, the title of the plaintiff did not come to an end. The Power of Attorney had been rightly revoked by the plaintiff and it could not be said that the same was irrevocable in the light of provisions of Section 202 of the Contract Act, 1872. In that regard, the learned counsel placed reliance on the decisions in [1] Anathula Sudhakar Vs. P. Buchi Reddy (dead) by LRS & others [ (2008) 4 SCC 594] and [2] State of Andhra Pradesh & others Vs. Star Bone Mill & Fertiliser Company [ (2013) 9 SCC 319]. He further submitted that the decisions relied upon by the defendant were clearly distinguishable. The conduct of the defendant of approbating and and reprobating also could not be ignored. It was, therefore, submitted that both the Courts rightly held in favour of the plaintiff and, therefore, there was no merit in the appeal.
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09. I have heard the learned counsel for the parties at length and with their assistance, I have also perused the records of the case.
10. The Agreement of Development & Sale [Exh.53] is the basic document on which the parties have based their claims. This agreement dated 1st February 1999 was entered into between the mother of the plaintiff, the plaintiff herself and her sisters on one part who were referred to as "owners of the property" and the defendant as the other part. The defendant has been referred as "the developer". The parties proceeded to agree on the premise that each owner had interest in the said property and intended to develop the same. The developer was the brother of the plaintiff and he agreed to pay a sum of Rs. 12,50,000-00 along with sanctioned developed plot of 10,000 sq. ft., each to the owners as consideration for being assigned the right to develop the property. This consideration was for the purposes of granting development, promotion, construction rights along with right of sale of the property in favour of the defendant. The right to sell the developed/constructed part of the property was only after payment of consideration to the owners. Similarly, occupancy of the premises constructed was permitted only after payment of full consideration by the developer to the owners. For said purpose, an irrevocable General Power of Attorney was executed by the owners in favour of the ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:43:33 ::: sa387.13 10 developer. It was made clear that only after payment of consideration to the owners, the developer would be at liberty to execute sale-deeds, transfer-deeds in favour of the purchasers. This agreement entered into between the parties is not in dispute.
11. The plaintiff deposed in terms of the plaint averments. In her cross-examination, she admitted her signature on a receipt at Exh.
72. In the deposition of the defendant at Exh.81, reference was made to the Sanctioned Plan of the Nagpur Improvement Trust at Exh.54. According to the defendant, as per said plan, Plot No. R-5 was allotted to the plaintiff. He also referred to the reply filed by him at Exh.83 in the Appeal from Order No. 41 of 2008 before this Court. He relied upon the document at Exh.75 to indicate his possession and according to him, as he had paid the consideration amount to the plaintiff, there was no question of revoking the Power of Attorney. He denied that the consideration agreed was Rs.12,50,000-00 and a plot admeasuring 10,000 sq.ft.
12. As per the reply filed on behalf of the defendant in Appeal from Order No. 41 of 2008 on affidavit dated 21st August, 2008, it was stated by the defendant that Plot No. R-5 was allotted to the plaintiff. However, its possession was not transferred to the plaintiff nor was ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:43:33 ::: sa387.13 11 any sale-deed executed. As far as this statement as to allotment of Plot No. R-5 admeasuring 10857 sq. ft. to the plaintiff is concerned, same can be found in paragraphs 4 and 6 of the said reply. Similarly, the receipt executed by the plaintiff at Exh.73 indicates reference to Plot No. R-5 being allotted to her.
13. From the aforesaid evidence, it is clear that the defendant had come up with a specific case that Plot No. R-5 was allotted to the plaintiff, but its possession was not handed over to her. In that regard, therefore, the contention as urged on behalf of the defendant that said plot was never allotted to the plaintiff cannot be accepted being against the evidence on record. I find that both the Courts were, therefore, justified in coming to the conclusion that Plot No. R-5 was allotted to the plaintiff as part of consideration as per the agreement at Exh.53 dated 1st February, 1999.
14. According to defendant, the power of attorney granted by the plaintiff in his favour was irrevocable. In this regard, it is to be noted that the power of attorney authorises the defendant to take various steps to facilitate release of the property in the ceiling proceedings and thereafter to take steps for implementing the proposed housing scheme. The document of power of attorney does ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:43:33 ::: sa387.13 12 not indicate creation of any interest in favour of the defendant in the property in question. There is no clause to that effect in the said document. It is only if any interest is created in the subject matter in favour of the agent that such agency would become irrevocable as per Section 202 of the Contract Act, 1872.
In this regard, the following observations in Johan Kotaiah vs. A. Divakar and ors. AIR 1985 Andhra Pradesh 30 clarify the aforesaid distinction :
" 17. Thus, it will be seen that if the interest created in the agent is in the result or the proceeds arising after the exercise of the power then the agency is revocable and cannot be said to be an irrevocable agency. However, if the interest in the subject matter say a debt payable to the principal, is assigned to the agent as security simultaneously with the creation of the power and thereafter the agency exercises the power to collect the debt for discharge of an obligation owed by the principal in favour of the agency or owed by the principal in favour of a third party, then agency becomes irrevocable."
18. This is also not a case where the principal has assigned any interest simultaneously with the execution of the power of attorney. But, it only created an interest in the resultant product or produce arising out of the exercise of the power. Paragraph 10 of the Power of attorney extracted above permits the agent to recover all his dues and ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:43:33 ::: sa387.13 13 remuneration of 5% of the total value of the total properties developed or otherwise and all the amount lying in various banks are to be fully recovered and duly paid to the attorney. Thus, the interest created in favour of the agent for payment of either his dues or his remuneration is in the product arising out of the exercise of the power and therefore it is clear prima facie that Exhibit-A1 does not crete an irrevocable power of attorney."
Hence, in the light of aforesaid observations with which I am in agreement, it cannot be said that the power of attorney at Exhibit- 66 granted to the defendant was irrevocable in nature. The ratio of decision relied upon by the learned counsel for the appellant in Seth Loon Karam Sethiya (supra) cannot be made applicable to the facts of the present case.
15. Considering the case of the parties and the evidence on record, I do not find that it was the defendant who was in exclusive possession of the suit property. As observed by the first appellate Court there is nothing on record to show exclusive possession of the defendant. His possession was in the capacity of being the holder of power of attorney of the plaintiff. The letter at Exhibit-72 issued by the plaintiff cannot be read in isolation. It has to be read in the context of other evidence on record. There is nothing on record to indicate that ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:43:33 ::: sa387.13 14 there was any cloud on the plaintiff's title. As per the defendant's reply at Exhibit-83, the plaintiff's title was not under challenge. In that view of the matter, it cannot be said that the plaintiff ought to have prayed for delivery of possession also. The ratio of the decision in Executive Officer (supra) cannot apply to the facts of the present case.
16. As a result of the aforesaid discussion, the substantial questions of law are answered against the appellant. The impugned judgment cannot be said to be perverse. The plaintiff has been rightly granted relief. The second appeal therefore stands dismissed with no order as to costs.
The learned counsel for the appellant seeks continuation of the interim relief for a period of eight weeks to take further steps in the matter. The request is opposed by the learned counsel for the respondent. The interim relief operating since 10/09/2013 shall continue to operate for a period of six weeks from today. It shall cease to operate automatically at the end of period of six weeks.
Judge
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