) ------ Sri Manoj Kumar Gupta, aged about 49 years, s/o Sri Krishna Chandra v. 1
Case Details
Second Appeal No. 41 of 2020 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.41 of 2020 (Against the Judgment and decree dated 05.12.2019 passed by the learned District Judge 1st, Khunti in Civil Appeal (Title Appeal) No. 82 of 2010) ------ Sri Manoj Kumar Gupta, aged about 49 years, s/o Sri Krishna Chandra Gupta, R/o Village- Khunti, P.O. & P.S.- Khunti, Dist. Khunti .... .... …. Appellant Versus 1 (a). Baby Jaiswal, w/o late Rajesh Kumar Jaiswal 1 1 1 (b). Shankar Ravi Jaiswal, s/o late Rajesh Kumar Jaiswal (c). Satyam Jaiswal, s/o late Rajesh Kumar Jaiswal (d) Minakshi Jaiswal, d/o late Rajesh Kumar Jaiswal No. 1(a) to (d) all resident of Dak Bangla Road, Khunti, P.O., P.S. & Dist. Khunti, PIN CODE-835210 2 Ramesh Kumar Jaiswal, son of late Om Prakash Jaiswal and resident of Village- Mahuwatoli, P.O.+ P.S. Khunti, Dist. Khunti 3 Awadhesh Kumar Jaiswal 4 Dinesh Kumar Jaiswal 5 Umesh Kumar Jaiswal 6 Manoj Kumar Jaiswal 7 Gyan Shankar Jaiswal Sl. No.3 to 7 are sons of late Om Prakash Jaiswal 8 Rekha Jaiswal, daughter of late Om Prakash Jaiswal Sl. No.3 to 8 resident of Village- Namkum, Main Road, P.O.- Namkum, P.S.+ Dist. Khunti ... .... …. Respondents For the Appellant For the Respondents ------ : Mr. Sachi Nandan Das, Advocate : Mr. Om Prakash Singh, Advocate : Mr. Rahul Kr. Gupta, Advocate : Mr. Sarju Prasad, Advocate : Mr. Gaurav, Advocate : Mr. Priyanka Jaiswal, Advocate : Mr. Atmaram Choudhary, Advocate ------ PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 2 This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 05.12.2019 passed by the learned District Judge-I, Khunti in Civil 1 Second Appeal No. 41 of 2020 Appeal (Title Appeal) No. 82 of 2010 whereby and where under, by the said judgment of reversal, the learned first appellate court has set aside the judgment and decree passed by the learned trial court being the court of Civil Judge (Jr. Div.), Munsif, Khunti in Title Suit No.14 of 1994 dated 14.06.2010 and decreed the said suit by declaring that the plaintiffs have valid right, title and interest over the suit land and the plaintiffs-appellants have been in continuous possession over the suit land and confirmed their possession over the suit land and restrained the defendant-respondent from alienating any portion of the suit land or to make construction over the same either through himself or through his labourers, servant, employees and other workers. 3
Legal Reasoning
The case of the plaintiffs in brief is that the suit land was recorded in the revisional survey record of right as Bakast land of Nanhak Sao who was in possession of the same. The recorded khewatdar on account of legal necessity sold some lands to Rukhmini Devi- mother of the original plaintiff (since deceased) by virtue of registered deed dated 10.12.1934 and put her in possession of the same by various sale deeds for valuable consideration. Rukhmini Devi thereafter made payment of the rent in her name and remained in peaceful possession thereof till she was alive. After the death of Rukhmini Devi in the year 1948, the plaintiff being his legal heir inherited the suit property and came into possession of the same and is still continuing in possession thereof being the absolute owner in respect of the suit land and the plaintiff has acquired indefeasible title 2 Second Appeal No. 41 of 2020 in respect of the suit land and the plaintiff has also perfected his title by way of adverse possession by remaining in continuous possession for more than 12 years. The plaintiff after death of his mother filed successive application for mutation of the land in his name but the circle officer did not take any steps. Lastly, the plaintiff on 05.01.1993 filed an application claiming mutation of his name vide Mutation Case No.8 R 27 of 1993-94. In that case, the defendant falsely alleged
Legal Reasoning
that Smt. Rukhmini Devi has executed general power of attorney authorizing her husband Mata Bhikh Ram to deal with the land in the suit and to execute a register deed of transfer by virtue of the said registered general power of attorney dated 07.08.1939 and on the strength of said registered power of attorney; the attorney holder executed transferred the suit land to Kumari Sabita, daughter of Dwarika Sahu by virtue of registered sale deed 12.04.1955 illegally. The purchaser of the property sold the suit land to the defendant by virtue of sale deed dated 05.04.1975. The defendant claimed possession since the date of purchase and also got his name mutated in the office of State of Bihar through Circle Officer, Khunti and made payment on rent in his name. It is next pleaded that after death of Rukhmini Devi, the power of attorney became ineffective and nonest in the eye of law and thus no right, title and interest having been passed upon Kumari Sabita in respect of the suit land. The execution of the sale deed by Kumari Sabita in favour of the defendant will not transfer any right, title and interest in respect of the suit land to the defendant. Thus, the sale deed executed by Kumari Sabita in favour 3 Second Appeal No. 41 of 2020 of Manoj Kumar Gupta is void ab-initio, illegal and not binding upon the plaintiff. The plaintiff further asserted that the order passed by the Circle Officer, Khunti is also illegal and without jurisdiction. The plaintiff also alleged misconduct on the part of the Circle Officer, Khunti in the said mutation proceeding. Hence, the plaintiff filed the suit for declaring right, title and interest over the suit property and of permanently restraining the defendant from dispossessing the plaintiff from the suit land and from taking forceful possession thereof and also not to make any construction over the suit land either himself or through his labourers, servant, employees and other workers and also to restrain the defendant from alienating for sale or otherwise any portion of the land in suit. 4 In his written statement, the defendant challenged the maintainability of the suit on various technical grounds and pleaded that Rukhmini Devi did not die in the year 1948 and Mata Bhikh Ram duly executed the registered sale deed on the basis of the power of attorney executed by Rukhmini Devi in favour of Kumari Sabita during the lifetime of Rukhmini Devi and Kumari Sabita has also acquired a valid title which was transferred to the defendant in the year 1977 and proceeding under Section 144 and 145 Cr.P.C. was started between the father of Manoj Kumar Gupta and Krishna Chandra Gupta and others which was ordered in favour of the defendant wherein the plaintiff did not claim his right, title and interest over the suit land. The defendant next pleaded that since the defendant has been coming in possession of the suit land whereas the 4 Second Appeal No. 41 of 2020 plaintiff never came in possession of any portion of the suit land even for a single day and he never inherited the suit land from his mother Rukhmini Devi and even if it is assumed for a sake of argument that Rukhmini Devi breathed her last before the Hindu Succession Act, 1956 came in force, the succession of suit land would be passed between legal heirs that is all the daughter and sons of said Rukhmini Devi. Hence, in any case; the plaintiff is not entitled to the suit land. 5 On the basis of rival pleading of the parties, the learned trial court framed the following ten issues which is as under:- Is the suit as framed maintainable? (i) (ii) Has the plaintiff valid cause of action for the suit? (iii) Whether the suit suffer for non-joinder of parties? (iv) Whether the suit is barred by law of limitation and adverse possession? (v) Is Rukhmini Devi the mother of the plaintiff died in the year 1948 or after 1955? (vi) Whether Mata Bhikh Ram had any valid power of attorney to dispose of the suit land on behalf of Rukhmini Devi, the mother of the plaintiff on the basis of the power of attorney allegedly executed by her on 07.08.1939? (vii) Whether the usufructury mortgage deed dated 15.03.54 executed by Mata Bhikram on the basis of power of attorney dated 07.08.1939 allegedly executed by Rukhmini Devi? (viii) Whether the defendant acquired title by virtue of sale deed executed by Sabita Kumari? (ix) Whether the plaintiff or the defendant is in possession of the suit (x) property? To what relief or reliefs is the plaintiff entitled to? 6 In support of his case, the plaintiff examined seven witnesses and proved the documents which have been marked Ext.1 to 7. On the other hand, from the side of the defendant, six witnesses were examined and the defendant proved the documents which have been marked Ext. A to Ext.L/1. 7 The learned trial court first took up issue no. (v) and considering the evidence in the record came to the conclusion that 5 Second Appeal No. 41 of 2020 Rukhmini Devi did not die in the year 1948 but she died in the year 1955 till the date of execution of the sale deed marked Ext. G, she was alive. The learned trial court next took up issue no. (ix) and decided the issue in favour of the defendant and against the plaintiff and came to the conclusion that the defendant has all alone being possessing the suit land. The learned trial court next took up issue no. (vii) and on the basis of the facts came to the conclusion that since Ext. F is a registered deed of usufructory mortgage and no evidence was put forth to discard the same and answered the issue no. (vii) in the affirmative. The learned trial court next took up issue nos. (vi) and (viii) together and considered that even though in the power of attorney executed by Rukhmini Devi in favour of her husband dated 07.08.1939 there is no description of the village- Mahuatoli but after looking at Ext.2 in its entirety, it appears that Rukhmini Devi executed the power of attorney in respect of all her lands in favour of her husband but answered the issue no. (vi) and (viii) in the negative. The learned trial court next took up issue no. (iii) and came to the conclusion that as the daughters of Rukhmini Devi has not been impleaded as party to the suit hence, the suit is bad for non-joinder of necessary party. In respect of issue no. (iv) next taken up by the learned trial court, the learned trial court considered that since the plaintiff has not prayed for any relief in respect of sale deed executed by his father in favour of Kumari Sabita hence, the suit is not maintainable. The learned trial court observed that the plaintiff neither questioned the document within the time limit nor filed any 6 Second Appeal No. 41 of 2020 suit within the time period of limitation. Hence, the suit is barred by limitation and as the plaintiff failed to establish his valid title hence, the question of adverse possession does not arise. Lastly, the learned trial court took up issue nos. (i), (ii) and (x) and has concluded that the suit as filed is not maintainable and the plaintiff has no cause of action and the plaintiff is not entitled to any relief and dismissed the suit on contest. 8 Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs filed Civil Appeal (Title Appeal) No.82 of 2010 in the court of District Judge, Khunti which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 9 The learned first appellate court formulated the following seven points for determination for consideration:- (I) Whether Smt. Rukmini had executed a general power of attorney in favour of Mata Bhikh Ram or Special Power of Attorney with regard to her properties situated at village Erenda and Khunti only? (II) Whether Mata Bhikh Ram was duly authorized or has authority to sale or transfer the lands of Mauza Mahuatoli, which exclusively belongs to Smt. Rukmini Devi? And whether the defendant Manoj Kumar Gupta or his vendor Sabita Kumar got valid right, title and interest over the suit land by virtue of such transfer? (III) Whether the suit of the plaintiff is barred by section 34 of Specific Performance Relief Act, as even having knowledge of execution of the sale deed with regard to the suit land, plaintiff-appellant had not seek any relief for cancellation of such sale deeds? (IV) The suit land is in exclusive possession of appellant-plaintiff or in possession of defendant- respondent? (V) Whether the suit of plaintiff is barred by impleadment of necessary parties? (VI) Whether the suit as such filed on behalf of the appellant-plaintiff is barred by law of Limitation? (VII) Whether the plaintiff-appellant are entitled for the relief as such claimed? 10 The learned first appellate court made independent appreciation of the evidence in the record and considered that the 7 Second Appeal No. 41 of 2020 power of attorney executed by Rukhmini Devi in favour of Mata Bhikh Ram was only in respect of the land situated at village- Eranda and Khunti but Mahuatoli is a separate village. Hence, her husband had no authority to deal with the land of Mahuatoli in exercise of the power vested upon him by the power of attorney. The learned first appellate court then considered that the burden was on the plaintiff that Rukhmini Devi died in the year 1948 and concurred with the finding of fact of the learned trial court that Rukhmini Devi was alive till 1955 i.e. till the time of execution of the sale deed marked Ext. G by Mata Bhikh Ram in favour of Kumari Sabita but the learned first appellate court held that the sale deed executed by Mata Bhikh Ram in favour of Kumari Sabita in the year 1955 is not a valid transaction as power of attorney marked Ext.2 by Rukhmini Devi is not a general power of attorney with regard to her entire property but the same is only for the purpose of dealing with the landed property of Rukhmini Devi situated at Mouza Eranda and Khunti. The learned first appellate court considered that from Ext. G, it appears that Mata Bhikh Ram has sold the property as vendor being the owner himself and not as power of attorney holder of Rukhmini Devi as in the vendor column Mata Bhikh Ram has not mentioned that he is selling the property as power of attorney holder. Hence, the transaction vide Ext.G is a void transaction and a sham transaction and differing from the finding of the learned trial court that non-mentioning of the name of the mouza- Mahuatoli in the power of attorney marked Ext.2 is a human error as no court shall make such presumption of fact beyond 8 Second Appeal No. 41 of 2020 the recital of the document and observed that the learned trial court erred in considering irrelevant and illegal presumption that Rukhmini Devi was incapable of taking care of her property. The learned first appellate court considering the oral evidence in the record put forth by the plaintiff and the witness of the plaintiff has categorically stated that the plaintiff is in possession over the suit land and as the sale deed marked Ext. G cannot confer any right, title and interest upon the defendant and for the reasons mentioned in the judgment found the testimony of D.W.1 to be doubtful. The learned first appellate court considered the cross-examination of D.W.2 wherein he admitted that the plaintiff constructed a guard wall on the suit land not for stopping flow of water and sand but for demarcation of the boundary. The learned first appellate court took note of the fact that though the rent receipts which have been marked Ext. A to A/8 shows total area mentioned as 55 decimals but the suit land was of 81 decimals. The defendant did not produce any revenue record in support of his claim of possession. The learned first appellate court also considered that neither the mutation case nor the entry of register-II has been brought by the defendant to substantiate the veracity of the rent receipts and under such circumstances, the learned first appellate court observed that from payment of rent, it cannot be deduced that the defendant is having either title or possession over the suit land and thus, appreciating the evidence in the record, the learned first appellate court came to the conclusion that the plaintiff being the successor of Rukhmini Devi- the original 9 Second Appeal No. 41 of 2020 owner of the suit land has natural possession over the suit land and the ocular evidence on behalf of the plaintiff unequivocally establishes his possession over the suit land as some of the witnesses of the defendant have even accepted that the plaintiff had constructed guard wall on the suit land and as Ext. G and I were void documents and no right as such is either being passed to Kumari Sabita or to the defendant and the defendant failed to establish his possession over the suit land and thus, differing from the finding of the learned trial court came to the conclusion that the plaintiff has been in possession of the suit land and decided the issues in favour of the plaintiff. The learned first appellate court then considered that since the transactions of sale vide Ext. G was a void one; there was no need for decree for setting aside such document. Since the document Ext. G is a void document executed by Mata Bhikh Ram a person who had no authority to execute the same and through such transaction Kumari Sabita, vendor of Ext.I had not acquired any right, title and interest so, the sale deed executed by Kumari Sabita vide Ext. I is also a void document and the same does not attract any limitation of cancellation of sale deeds. Hence, the limitation of Article 59 does not apply in such a case. The learned first appellate court did not find the plea of adverse possession of the defendant having been established in the absence of any pleading and proof as to since when possession of the defendant became hostile rather the defendant pleaded and prayed of his title based on sale deed marked Ext. G and I. The learned first appellate court considered that in view of Hindu 10 Second Appeal No. 41 of 2020 Succession Act, 1956 as suit land was purchased land of Rukhmini Devi so it is her exclusive property which property came in purview of stridhan. The learned first appellate court considered that in this suit, the plaintiff sought relief for declaration of his right, title and interest over the suit land along with confirmation of possession over the suit land and the cause of action for the suit arose due to the order passed by the Circle Officer, Khunti in mutation case; which was erroneously and wrongly rejected by the Circle Officer, Khunti by the order passed on 16.08.1993. Hence, the plaintiff alone was competent to file the suit and reversed the judgment of the learned trial court as bad for non-joinder of necessary party. The learned first appellate court considered that though the plaintiff has not examined himself as a witness but his son and power of attorney holder Rajesh Kumar Jaiswal has adduced evidence on behalf of the plaintiff as P.W.6 and the power of attorney holder has personal knowledge over the matter being the son of original plaintiff as well as grandson of Mata Bhikh Ram and Rukhmini Devi so merely, on the ground that party to the suit do not appear as a witness, evidence of power of attorney holder cannot be ignored and as P.W.6 has thoroughly been cross-examined on behalf of the defendant-respondent on each and every aspect and there is no contention raised by the defendant that P.W.6 was lacking any personal knowledge over the matter of the appellant and also took note of the fact that the defendant Manoj Kumar Gupta himself has not turned up to be examined as a witness to the suit and on behalf of him his father- Krishna Chand Gupta being the power of 11 Second Appeal No. 41 of 2020 attorney holder has been examined as D.W.6 and went on to set aside the impugned judgment and decree and decreed the suit as already indicated above. 11 At the time of Admission of this appeal, the following substantial questions of law were framed vide order dated 10.09.2020 :- (A.) Whether the learned Appellate Court failed to construe Power of attorney dated 07.08.1939 (Ext.2), which was executed by Rukmani Devi, in favour of Mata Bhikhram, which is the basis for transaction of Sale Deeds dated 15.03.1954 (Ext. F) dated 05.05.1955 (Ext. G) & Dated 05.04.1975 (Ext.I), which has vitiated the entire judgment and decree passed by the learned Appellate Court? (B.) Whether the learned Appellate Court being the final court of fact and law was duty bound to examine the Power of Attorney No. 02/1939 dated 07.08.1939 (Ext.B), which was validly brought on record by the defendant, pursuant to order dated 15th March, 2010, passed by this Hon’ble Court in W.P. (C) No.1815 of 2004, and non consideration of same, has vitiated the entire finding recorded by the learned Appellate Court?” 12 Mr. Sachinandan Das, learned counsel for the appellant relied upon the judgment of Hon’ble Supreme Court of India in the case of Syed Abdul Khader vs. Rami Reddy & Ors. reported in (1979) 2 SCC 601, paragraph no.13 of which reads as under:- 13. Adopting the principle of strict construction of a Power of Attorney, the first question that is required to be answered is whether the Power of Attorney, Exh. P-1 was meant to confer the authority on the agent to act only in respect of the joint affairs or joint property of the co- principals or it was in respect of the individual affairs and effects of each principal. In Exh. P-1 at three places the expression used is: “our power of attorney to act on our behalf and we empower the said person”; then again “on our behalf in all departments”, and then lastly “acts done and effected by the agent shall be deemed to be the acts done and effected by the principals”. Mr- Gopalakrishnayya said that it would be extraordinary to hold that the expression “on our behalf” as disclosing a conjoint action on behalf of more than one person could ever be interpreted by any canon of construction as one on behalf of each individual. He said 12 Second Appeal No. 41 of 2020 that apart from the strict construction the court must put on a Power of Attorney, where the terms of the written contract are clear and unambiguous it is impermissible for the Court to take into consideration the other circumstances to determine the intention of the parties. When a contract is reduced to writing, undoubtedly the court must look at the terms of the contract and proceed on the assumption that the parties intended what they have said and if the terms are unambiguous the court must give effect to the terms of the contract. However, it is well established that in considering a contract it is legitimate to take into account the surrounding circumstances for ascertaining the intention of the parties (vide Modi & Co. v. Union of India [AIR 1969 SC 9 : (1968) 2 SCR 565] ).” and submits that the learned first appellate court failed to consider that it was legitimate for both the trial court and the first appellate court to look into the surrounding circumstances for ascertaining the intention of the parties and to power of attorney marked Ext. 2 and even though the power of attorney was not executed in respect of the land of Village- Mahuatoli still the learned first appellate court ought not to have held that the father of the original-appellant was entitled to execute the sale deed and the learned first appellate court failed to do so. 13 It is next submitted by the learned counsel for the appellant that the learned first appellate court failed to consider that the suit is barred by limitation as admittedly Ext. G being of the year 1955 and Ext. I being of the year 1975 and the suit is having been filed in the year 1994 hence, the suit is hopelessly barred by limitation. In this respect, learned counsel for the appellant relies upon the judgment of Hon’ble Supreme Court of India in the case of Prem Singh & Ors. vs. Birbal & Ors. reported in (2006) 5 SCC 353, paragraph no.27 and 28 13 Second Appeal No. 41 of 2020 of which reads as under:- “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption. 28. If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court.” 14 It is next submitted by Mr. Das that it is a settled principal of law that a person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by law of limitation and he must show that he had possession before the alleged trespasser got possession. In this respect, learned counsel for the appellant relied upon the judgment of Hon’ble Supreme Court of India in the case of Nazir Mohamed vs. J. Kamala & Ors. reported in (2020) 19 SCC 57, paragraph no. 47 of which reads as under:- “47. A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by the laws of limitation. He must show that he had possession before the alleged trespasser got possession.” 15 Hence, it is submitted that the learned first appellate court having committed an illegality and the judgment and decree passed by the learned first appellate court be set aside and the judgment and decree passed by the learned trial court be restored. 14 Second Appeal No. 41 of 2020 16 Mr. Rahul Kumar Gupta, learned counsel for the respondents on the other hand defends the impugned judgment and decree. It is next submitted by Mr. Gupta that the ratio of Syed Abdul Khader vs. Rami Reddy & Ors. (supra) is not applicable to the facts of the case as the document in question in this case is a power of attorney and not a contract. It is next submitted by Mr. Gupta that if a person without having any right, title and interest in respect of a property sells the same to someone else then the said document is a void document and in this case undisputedly, the power of attorney executed by Rukhmini Devi in favour of her husband Mata Bhikh Ram was not containing the village Mahuatoli, where undisputedly the suit property is situated; thus certainly, such a power of attorney was nonest in respect of the land of Mahuatoli and since the sale deed marked Exhibit-G was a void document having been executed by the vendor who had the undisputedly no right appellants in respect of the property sold by him on the date of such sale; there was no necessity for seeking a declaration that the said document is void. It is next submitted by Mr. Gupta that it is a specific case of the plaintiff that he came to know about the said void sale deeds for the first time in the year 1993 and there was no any pleading nor any evidence of the defendant that the plaintiff was aware about the existence of the sale deed marked Ext. G and I any time before 1993 and the suit having been filed in the year 1994; the suit is within time and in this respect relied upon the judgment of Hon’ble Supreme court of India in the case of Prem Singh & Ors. vs. 15 Second Appeal No. 41 of 2020 Birbal & Ors. (supra), paragraph no.16 of which reads as under:- “16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of the law, as it would be a nullity.” (Emphasis supplied) 17 It is then submitted by the learned counsel for the respondents that a void document does not require to be declared as such and in this respect, Mr. Gupta relied upon the judgment of Hon’ble Supreme Court of India in the case of Daya Singh v. Gurdev Singh reported in (2010) 2 SCC 194, paragraph no.12, 13 and 14 of which reads as under:- “12. As noted hereinearlier, the only question, therefore, to be decided is whether the mere existence of an adverse entry in the revenue records had given rise to the cause of action as contemplated under Article 58 or had it accrued when the right was infringed or threatened to be infringed. 13. Let us, therefore, consider whether the suit was barred by limitation in view of Article 58 of the Act in the background of the facts stated in the plaint itself. Part III of the Schedule which has prescribed the period of limitation relates to suits concerning declarations. Article 58 of the Act clearly says that to obtain any other declaration, the limitation would be three years from the date when the right to sue first accrues. 14. In support of the contention that the suit was filed within the period of limitation, the learned Senior Counsel appearing for the appellant-plaintiffs before us submitted that there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. In support of this contention the learned Senior Counsel strongly relied on a decision of the Privy Council in Bolo v. Koklan [(1929- 30) 57 IA 325 : AIR 1930 PC 270] . In this decision Their Lordships of the Privy Council observed as follows: (IA p. 331) “… There can be no ‘right to sue’ until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.” 16 Second Appeal No. 41 of 2020 18 Hence, it is submitted that the learned first appellate court has not committed any illegality. It is lastly submitted that this appeal being without any merit be dismissed. 19 Having heard the submissions made at the Bar and after going through the materials in the record, so far as the first substantial question of law is concerned, it is pertinent to mention here that since the power of attorney marked Ext. 2 executed by Rukhmini Devi in favour of Mata Bhikh Ram did not contain the land of Rukhmini Devi of the village Mahuatoli in which undisputedly the suit property is situated; certainly, the said power of attorney did not vest any power upon Mata Bhikh Ram to execute any sale deed in respect of the land belonging to Mahuatoli. In the considered opinion of this Court certainly, the principle of law that is applicable to contract and is not applicable in the facts of the case to the power of attorney. Under the facts and circumstances of this case. By no stretch of imagination, it can be held that Rukhmini Devi executed the power of attorney marked Exhibit-2; in favour of Mata Bhikh Ram in respect of any property other than the ones mentioned therein. Hence, the learned first appellate court has not committed any error in construing the power of attorney marked Ext.2. So, the first substantial question of law as to whether the learned Appellate Court failed to construe Power of attorney dated 07.08.1939 (Ext.2), which was executed by Rukmani Devi, in favour of Mata Bhikhram, which is the basis for transaction of Sale Deeds dated 15.03.1954 (Ext. F) 17 Second Appeal No. 41 of 2020 dated 05.05.1955 (Ext. G) & Dated 05.04.1975 (Ext.I), which has vitiated the entire judgment and decree passed by the learned Appellate Court is answered in the negative; as already discussed above, the first appellate court did not misconstrued the power of attorney marked Exhibit-2 in any manner. Consequently the said judgment passed by it cannot be said to have been vitiated. 20 So far as the second substantial question of law as to whether the learned Appellate Court being the final court of fact and law was duty bound to examine the Power of Attorney No. 02/1939 dated 07.08.1939 (Ext.B), which was validly brought on record by the defendant, pursuant to order dated 15th March, 2010, passed by this Hon’ble Court in W.P. (C) No.1815 of 2004, and non consideration of same, has vitiated the entire finding recorded by the learned Appellate Court, is concerned, certainly, the learned first appellate court being the final court of facts was duty bound to examine power of attorney marked Ext. B but the perusal of the record reveals that it is the same power of attorney , which has been marked as Ext. 2 and in Ext. B also property belonging to Rukhmini Devi situated in village-Mahuatoli has not been mentioned. Therefore, Ext. B being the same document as that of Ext. 2; substituting the word “Exhibit- 2”with the words “Exhibit-B”; no way improves the case of the defendant in any manner. Hence, this Court is of the considered view that the learned first appellate court has not committed any error in appreciation of the Ext. B hence; the second substantial question of law is also answered in the negative. 18 Second Appeal No. 41 of 2020 21 In view of the answers to the two substantial questions of law, this Court is of the considered view that there is no merit in this appeal. 22 Accordingly, this appeal being without any merit is dismissed on contest but under the circumstances without any costs. 23 Let a copy of this Judgment along with the Lower Court Records be sent back to the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 16th August, 2023 AFR/ Sonu-Gunjan/- 19