The High Court
Case Details
IN THE HIGH COURT OF ORISSA : CUTTACK RSA No.161 of 2019 In the matter of an Appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree dated 01.05.2019 and 09.05.2019 respectively passed by the learned Additional District Judge, Kamakhyanagar in RFA No.81 of 2013 setting aside the judgment and decree dated 31.08.2013 and 13.09.2019 respectively passed by the learned Civil Judge (Senior Division), Kamakhyanagar in C.S. No.206 of 2009. ……… Sukanta Prusty :::: Appellant -:: VERSUS ::- Gayadhar Prusty & Another Respondents :::: Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- … Mr. R.K. Mohanty, Sr. Advocate For Appellant For Respondents … Mr. M.B. Rao, Advocate (R.1) Mr. K.K. Jena, Advocate (R.2) ------ CORAM : MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Hearing: 06.11.2023 :: Date of Judgment: 04.12.2023 --------------------------------------------------------------------------------------- D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree dated 01.05.2019 and 09.05.2019 {{ 2 }} respectively passed by the learned Additional District Judge, Kamakhyanagar in RFA No.81 of 2013.
Legal Reasoning
The Respondent No.1, as the Plaintiff had filed Civil Suit No.206 of 2009 seeking declaration of his joint right, title and interest over the land in schedule ‘A’ along with the Appellant (Defendant No.1) with further relief of declaration that the General Power Of Attorney dated 11.07.2007 and the Registered Sale Deed dated 20.11.2007 executed pursuant to the said General Power of Attorney are null and void. The Appellant and Respondent No.2 had been arraigned in the suit as Defendant Nos.1 and 2 respectively. The suit having been dismissed, the Respondent No.1 being the non-suited Plaintiff had carried the Appeal under section 96 of the Code. The First Appeal has been allowed and the judgment and decree passed by the Trial Court in the suit filed by the Respondent No.1 (Plaintiff) being set aside: the Respondent No.1 (Plaintiff) has been granted with all the reliefs as he had prayed for. Thus the present Second Appeal is at the instance of the aggrieved Defendant No.1. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court. 3. Plaintiff’s case is that he and Defendant No.1 being the two brothers are the joint recorded owners in possession of the land which is the subject matter of the suit (better described in schedule Page 2 of 15 {{ 3 }} ‘A’ of the plaint). They had purchased the said land from their father Kalandi Prusty. One R.C.C. roof building is standing over the suit land and that was constructed with the money spent by both the brothers. The Plaintiff is an illiterate person and only knows how to sign who reposed faith and confidence on his brother (Defendant No.1) who was looking after the property and keeping the land records. The Defendant No.2 is the brother of the husband of the sister of the Plaintiff and Defendant No.1. The Plaintiff was residing in their native place at Bhuban whereas his brother- Defendant No.1 was residing at Dhenkanal. On 10.07.2007, the Defendant Nos.1 and 2 came to Bhuban and insisted the Plaintiff to accompany them to Dhenkanal saying that his presence was required at Dhenkanal to stand as a witness for execution of a purchase deed in favour of Defendant No.2. Acceding to the request of the Defendant Nos.1 and 2, the Plaintiff accompanied them to Dhenkanal. It is said that the Defendants cunningly by practicing fraud, obtained his signature on some blank stamp papers and also on some plain papers as also one register. The Plaintiff, however, all along remained under an impression and belief that the Defendants have done nothing to cause any harm to him. It is stated that the Plaintiff had never intended to execute any power of attorney in favour of Defendant No.1 nor he had so directed to prepare the said power of attorney. It is said by the Plaintiff that the Defendant by using his signatures on the blank stamp papers, on plain paper and register, somehow managed to obtain the power of attorney from Page 3 of 15 {{ 4 }} him in favour Defendant No.2. In the first week of January, 2009, the Defendant No.1 gave out in the locality that he was the exclusive owner having the right over the land and house in question that besides his own half share over the same he had purchased the rest half share from the Plaintiff. The Plaintiff then applied for relevant documents and to his surprise, could know that the Defendants being hand in gloves with each other having obtained the power of attorney from him, a sale deed has been executed in respect of his half share and interest over schedule ‘A’ property in favour of the Defendant No.1. The Plaintiff asserts that all such acts and deeds were fraudulent and in order to grab his property when he has not been paid with any consideration nor has delivered the possession and the Defendants taking advantage of his innocence and illiteracy and undue advantage of the fact that the Plaintiff was having implicit faith and reliance upon the Defendant No.1, those documents have been obtained and the Plaintiff has thus been deprived for his property. It is further stated that the Plaintiff having requested the Defendants to cancel all those documents, they denied the same and therefore, the suit came to be filed. 4. The Defendant No.1 who is the brother of the Plaintiff and purchaser of the half share and interest of the Plaintiff over schedule ‘A’ property contested the suit by filing written statement. The Defendant No.2 although did not file the written statement has Page 4 of 15 {{ 5 }} come forward to depose in favour of the Defendant No.1 during trial. 5. The Defendant No.1 has pleaded that the Plaintiff is not an illiterate person. He had read up-to Class-V and he is quite intelligent and working at Calcutta for a considerable period. Proceeding to explain the circumstances under which the General Power of Attorney was executed by the Plaintiff in favour of Defendant No.2 in respect of his property and the execution of the subsequent sale deed by the said power of attorney holder, i.e., Defendant No.2 in favour of Defendant No.1, it is stated that in the year 2007, the Plaintiff was in dire need of money. So, he contacted Defendant No.1 to sale his half share in schedule ‘A’ property. The Defendant No.1 agreed to purchase. Since the Defendant No.1 in July, 2007 was attached to a Chartered Account Firm and had gone to Bhawanipatna for audit purpose, he was very much busy with his work and then the Plaintiff was in a hurry to leave for Calcutta. It being not possible for the Defendant No.1 to come from Bhawanipatna for execution of the sale deed, he sent the consideration money to Defendant No.2, who is a common relation to both, the Plaintiff and Defendant No.1 for payment of the same to the Plaintiff. The Plaintiff, therefore, executed the General Power of Attorney in favour of the Defendant No.2 authorizing him to execute and register sale deed in his favour when he would return from Bhawanipatna. It has been further stated that the entire Page 5 of 15 {{ 6 }} consideration money was received by the Plaintiff from Defendant No.2 and he then executed the General Power of Attorney which had been drafted as per his instruction and he consciously and knowing fully well about all those executed the same which was registered. The Defendant No.1 thereafter when returned from Bhawanipatna, the sale deed in respect of the interest of the Plaintiff over schedule ‘A’ property was executed by the Defendant No.2, the power of attorney holder of the Plaintiff in favour of Defendant No.1 on 20.11.2007. The Defendant No.1 having purchased the interest of the Plaintiff over schedule ‘A’ property lawfully constructed RCC house by spending money from his own purse without any contribution from the Plaintiff on that score and he subsequently applied for mutation of the land in his favour which was allowed on 13.02.2008. The Plaintiff being noticed in that mutation case, had not objected. The Defendant No.1 thus was issued with the record of right in respect of the entire property in respect of schedule ‘A’. He asserts that no fraud had been practiced in the matter of execution and registration of the General Power of Attorney by the Plaintiff in favour of Defendant No.2 and thus he now asserts to be the rightful owner in possession of the entire schedule ‘A’ property. 6. The Trial Court on the above rival pleadings having framed as many as six issues; on the crucial issues as to the execution and registration of the General Power of Attorney by the Plaintiff in Page 6 of 15 {{ 7 }} favour of the Defendant No.2 on examination of the evidence and their evaluation, has found that it had been duly executed by the Plaintiff and was registered thereafter and no fraud was practaised nor misrepresentation was made in the matter of creation of said General Power of Attorney. Practically, this finding has led to the dismissal of the suit. 7. The Plaintiff thus being non-suited carried the First Appeal. The First Appellate Court sitting over to judge the sustainability of the finding of the Trial Court with regard to the validity of the General Power of Attorney (Ext.A), upon examination and evaluation of the evidence independently at its level has upset the finding of the Trial Court and consequentially the General Poer of Attorney as well as the Sale Deed have been held to be null and void and the Plaintiff’s suit has been decreed. 8. The Appeal has been admitted to answer the following substantial question of law:- “Whether the Lower Appellate Court in the facts and circumstances which have emerged from the rival pleadings and further keeping in view the relief sought for in the plaint has erred in placing the burden of proving due execution of general power of attorney (Ext.4) by the Plaintiff upon the Defendants instead of putting the said burden of proving the fact that the general power of attorney had not been duly executed by the Plaintiff upon the Plaintiff?”
Legal Reasoning
9. Mr. R.K. Mohanty, learned Senior Counsel for the Appellant (Defendant No.1) submitted that the First Appellate Court on the Page 7 of 15 {{ 8 }} face of the evidence that the Plaintiff is not an illiterate person and was working in different places outside has gone wrong in placing the heavy burden of proof as to the due execution of General Power of Attorney by the Plaintiff in favour of Defendant No.2 upon the Defendants. He submitted that in the facts and circumstances which emerge from the rival pleadings as well as the evidence let in by the parties, the First Appellate Court ought to have held that the General Power of Attorney executed by the Plaintiff in favour of Defendant No.2 was not the outcome of fraud or undue influence or misrepresentation. He submitted that the Plaintiff having failed to establish his case that the Defendants had practaised fraud upon him and by exercising undue influence and misrepresenting him had obtained the general power of attorney from him, the suit ought to have been dismissed. 10. Mr. K.K. Jena, learned counsel for the Respondent No.2 (Defendant No.2) adopted reiterated the submission of the learned Senior Counsel for the Appellant. 11. Mr. M.B. Rao, learned counsel for the Respondent No.1 (Plaintiff) submitted all in favour of the finding rendered by the First Appellate Court. According to him, keeping in view the relationship between the parties and the difference of status between the Plaintiff and his brother- Defendant No.1 both in educational and social front, the way the Defendant No.1 is saying to have purchased the property from the Plaintiff, itself, creates Page 8 of 15 {{ 9 }} serious doubt and suspicion with regard to the said transaction. He submitted that the explanations given by the Defendant No.1 as to why the General Power of Attorney created first and then the sale deed was executed by the power of attorney holder, are per se not believable. He contended that accepting for a moment that the burden of proof that the document had not been duly executed by the Plaintiff was lying upon the Plaintiff the evidence as a whole being taken into account with the circumstances surrounding the transaction the finding has to be that the Plaintiff had never intended to execute the General Power of Attorney in favour of the Defendant No.2 and thus had executed the said power of attorney so as to execute the sale deed in selling his share in the property to the Defendant No.1. 12. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below. I have perused the plaint and written statement and have gone through the evidence let in by the parties. 13. In order to find out the answer to the substantial question of law in ultimately judging the sustainability of the finding of the First Appellate Court rendered in favour of the Plaintiff in granting him the relief prayed for and thereby address the rival submission, some admitted facts are necessary to be viewed in their proper perspective. Page 9 of 15 {{ 10 }} The Plaintiff is the elder brother of the Defendant No.1. Both had together purchased the property from their father. The Defendant No.2 in whose favour the General Power of Attorney is said to have been executed by the Plaintiff is none other than the brother of the brother-in-law of the Plaintiff and Defendant No.1. The Defendant No.2 and his brother Gobinda who is the brother-in- law of the Plaintiff and Defendant No.1 together run a sweetmeat stall at Dhenkanal and they too have two mini buses which they used to ply from Dhenkanal to Bhuban. The Defendant No.1 basing upon that General Power of Attorney has executed a sale deed in respect of the suit land in favour of the Defendant No.1. The General Power of Attorney having been registered on 11.07.2007, the sale deed has been executed by the Defendant No.2 in favour of Defendant No.1 on 20.11.2007. The Plaintiff says that he had never executed the Deed of Power of Attorney in favour of the Defendant No.2. The Deed of Power of Attorney has been admitted in evidence and marked Ext.A whereas the sale deed has been admitted in evidence and marked Ext.C. The Defendant No.1 contends that the Plaintiff being in need of money when approached him for sale of his interest over schedule ‘A’ property since he was then outside and could not come for his pressing engagements, after having agreed to purchase the said property from the Plaintiff, such an arrangement was made as the Plaintiff was to leave for Calcutta. The arrangement was that the Plaintiff would execute the Power of Attorney in favour of the Page 10 of 15 {{ 11 }} Defendant No.2 and thereby, appoint him as such who in turn would execute the sale deed in favour of the Defendant No.1. On the above admitted factual settings; the parties having led evidence in support of their rival case and claim, the burden of proof, in my considered looses all its significance. Now the point arises for consideration of the totality of the evidence to ascertain as to whether by virtue of the sale deed executed by the Defendant No.2 being the so-called Power of Attorney holder of the Plaintiff in favour of the Defendant No.1 in selling the property of the Plaintiff on his behalf, the right, title and interest of the Plaintiff over the said property has stood transferred in favour of the Defendant No.1 or not. For the purpose, let us have a glance at the base document, i.e., the Power of Attorney (Ext.A). The sale deed has been executed by the Defendant No.2 as the power of attorney holder of the Plaintiff and on his behalf. The sale deed has been executed for a consideration of Rs.28,500/- The Defendant No.2 has derived the authority to execute the sale deed on behalf of the Plaintiff by virtue of the Power of Attorney (Ext.A.). The deed in question has been nomenclatured as the General Power of Attorney (GPA). But the subject matter for which the Power of Attorney had stood as the need is only the half share of the Plaintiff over the land in schedule ‘A’ and nothing more. By the said Power of Attorney not only nomenclatured as General Power of Attorney but then the following Page 11 of 15 {{ 12 }} authorities have been conferred on the attorney, the Defendant No.2 so as to be performed on behalf of the Plaintiff. (i) “To sale, convert, collect, get in or manage to collect or otherwise administer the aforesaid share as per my convenient use and enjoyment, and to execute and sign any deed and generally to do any act, which I could lawfully have executed, singed and done. (ii) To appear and act in all Courts, Civil/Revenue, whether original or Appellate, in the Registration Office and any other officers of Government, Municipal, Council or Notified Area Council or any other local authority in respect of such property. (iii) To mortgage, alienate, transfer or encumber the property as per my share to anybody/institution for any purpose and to receive the consideration amount thereof in case of sale. (iv) To sign and verify plaints, written statements, petitions/memorandum of appeal and claims and objections and applications of all kind and file them in any such court/Courts or office(s). (v) To appoint any Advocate, pleader or any other legal practitioner as and when necessary. (vi) To apply to Court(s)/Office (s) for copies of documents and papers. (vii) To maintain and invest money for the maintenance of the lands in question and can raise any construction over the same for commercial/residential purpose. (viii) To accept service of any summons, notice or writ issued by any Court or Office against me on this account. Page 12 of 15 {{ 13 }} (ix) To raise any loan for any purpose by mortgaging the property before competent Bank/Institution. (x) That, to assist the purchaser for mutation of the land in his (purchaser’s) name. AND generally to do, execute and perform any other act, deed, matter or thing, whatsoever which in the opinion of my said Attorney ought to be done, executed and performed in relation to my aforesaid property as fully and effectually in all respects as I myself could do the same, if I were personally present. AND I hereby agree and undertake to rectify and confirm all and whatsoever my said Attorney under the power in that behalf hereinbefore contained shall do or purpose to do by virtue of this Deed.” 14. The above authority conferred upon the Defendant No.2 shows that he was authorized to sale and sign in the deed which the principal (Plaintiff) would lawfully have executed, signed and done. Further the Authority is given to the Attorney (Defendant No.2) to alienate and transfer the property as per the share of the principal to anybody/institution for any purpose and receive the consideration amount. When the Defendant No.1 states that such a Power of Attorney was executed by the Plaintiff in favour of the Defendant No.2 as he was in a hurry to leave for Calcutta and as then the Defendant No.1 could not find time and manage to come from his work place, there is absolutely no indication that the Authority was given to execute the sale deed in favour of the Defendant No.1 Page 13 of 15 {{ 14 }} which had already been so settled and finalized in every respect. Interestingly enough, the following finds mention in the said Ext.A. “IT IS SPECIFICALLY MENTIONED THAT THE POSSESSION OF THE LAND IN QUESTION (AS PER MY SHARE) IS NOT GIVEN TO THE ATTORNEY HOLDER.” 15. So what the Defendant No.1 would say as the reason for non- execution of the sale deed is not finding support from the recitals in the Ext.A. Moreover, Ext.A does not find mention that the consideration for the said sale had been fixed and it was decided that the property would be sold to the Defendant No.1 and for that purpose the Power of Attorney was being executed, which could have been very well mentioned and on the face of the facts and narrations in the written statement, silence on those aforesaid aspects rather raises grave doubts as to the creations of that General Power of Attorney. The sale deed (Ext.D) in its recitals do not state anything about prior agreement between the Plaintiff and Defendant No.1 when it is stated in Ext.A that possession of the property has not been given to the Power of Attorney holder, in Ext.-B the Power of Attorney holder executing the sale deed says to have delivered the possession of the property to the Defendant No.1. It is not stated by the Defendant No.2 examined as D.W.2 that the consideration money was Rs.28,500/-. When the Defendant No.1 says to be then at Bhawanipatna how the consideration money was sent to the Defendant No.2 is neither stated by the Defendant No.1 Page 14 of 15 {{ 15 }} nor the Defendant No.2 states as to how he received the said amount. The story presented by the Defendant No.2 about the purpose and objective behind coming into being of that General Power of Attorney (Ext.A.) thus on record appears to be blatant lies. Therefore, the ground raised by the Plaintiff that he had not intended to execute the Power of Attorney to enable the Defendant No.2 to sale the property to the Defendant No.1 holds water standing for acceptance. 16. In view of all these aforesaid, the answer to the substantial question of law runs in favour of the confirmation of the judgment and decree passed by the First Appellate Court. 17. In the wake of aforesaid, the Appeal stands dismissed. No order as to cost. True Copy P.A. Sd/- (D. Dash), Judge. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 03-Jan-2024 12:48:23 Page 15 of 15