The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.162 of 2020 judgment and decree dated 31.8.2019 and (From the 7.9.2019 respectively passed by learned Addl. District Judge, Jagatsinghpur in R.F.A. No.12/2017) Minaskshi Sahoo … Appellant -versus- Sai Educational and Charitable Trust and others … Respondents Advocates appeared in the case through hybrid mode: For Appellant : Mr.Om Prakash Das, Advocate. Mr. S. Palai, Advocate -versus- For Respondents : Mr. Bibekanda Bhuyan, Advocate. --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 23.12.2024. Sashikanta Mishra,J. This is a plaintiff’s appeal against a reversing judgment. The judgment dated 31.8.2019 R.S.A. No.162 of 2020 Page 1 of 24 followed by decree passed by learned Addl. District Judge, Jagatsinghpur in R.F.A.No.12/2017 is impugned whereby, the judgment dtd.21.1.2017 followed by decree passed by learned Sr. Civil Judge, Jagatsinghpur, in Civil Suit No.222/2008 was reversed. 2. For convenience, the parties are referred to as per their respective status in the trial Court. 3. The original plaintiff, Sarat Ch. Sahoo (since deceased), filed the suit for a declaration that the registered sale deed No.90 dated 17.1.2008, the registered power of attorney dtd.28.7.2007 and the unregistered agreement dtd.24.7.2007 are illegal and void, and for a permanent injunction. The case of the plaintiff is that Sarat Ch. Sahoo, a permanent resident of village Sampur in the district of Jagatsinghpur, was an auto rickshaw driver by occupation. His only son died in a motor accident in the year 1999 and since then he and his wife became R.S.A. No. 162 of 2020 Page 2 of 24 depressed. In the month of April, 2007, Defendant No.1, while travelling in the auto rickshaw driven by said Sarat Ch.Sahoo from Jagatsinghpur to Jaipur came to know about his mental condition and that he has land measuring Ac.1.04 decs. in Jagatsinghpur-
Facts
Jaipur road. The defendant No.1 thus gained the faith of the original plaintiff and his wife and requested for leasing out the said land for establishing an Engineering College wherein a room would be provided in the ground floor of the proposed building to him and his younger daughter would be given a job in the College. The original plaintiff, on good faith executed an unregistered agreement on 24.7.2007. On 28.7.2007 on the advice of Defendant No.1, the original plaintiff accompanied him to Bhubaneswar and executed a power of attorney in his favour in the office of DSR, Bhubaneswar for constructing Engineering College building over the suit land. Subsequently, when the plaintiff came to know about the Mutation Case No.295/2008, he enquired from the Tahasil Office at Jagatsinghpur and was informed that Defendant R.S.A. No. 162 of 2020 Page 3 of 24 No.1 had fraudulently and deceitfully managed to create a sale deed in favour of his wife Defendant No.2 in respect of the suit land on the basis of the power of attorney dtd.28.7.2007.He therefore, approached the Defendant No.1 in his local office along with some local persons and registered his protest whereupon the defendant No.1 handed over the xerox copy of the unregistered agreement dtd.24.7.2007 and registered power of attorney to the plaintiff. Upon going through the contents of the documents, the plaintiff could know about the fraud played by defendant No.1 upon him. The defendant No.1 had himself purchased stamp paper of the power of attorney in the name of the original plaintiff by forging his signature and scribed the same with assistance of his henchmen. He also created official endorsement and the finger impression, signature of the original plaintiff and of the attesting witness on the back side of the first page. The original plaintiff did not have any address at Bhubaneswar but the power of attorney was executed showing a temporary address at Bhubaneswar. Defendant No.2 is R.S.A. No. 162 of 2020 Page 4 of 24 the wife of Defendant No.1 and trustee of the same institution. So, the sale of the suit land by Defendant No.1 in favour of defendant no.2 for the financial assistance of the development of the educational trust is a nominal document. After coming to know of such facts, the plaintiff filed a complaint case bearing No.77/2008 in the Court of learned S.D.J.M., Jagatsinghpur which is pending investigation by the Police being directed by the Court. The original plaintiff thereafter obtained certified copies of the relevant documents and filed the suit. The Defendant No.2 had filed C.S.No.222/2008 in the Court of learned Civil Judge (Jr. Division), Jagatsinghpur seeking the relief of permanent injunction against the plaintiff, but the same was dismissed on 02.1.2013. It is the further case of the plaintiff that he was in peaceful cultivating possession of the suit land even after execution of the sale deed in question. The original plaintiff died during pendency of the suit. After his death, his wife was substituted as plaintiff and his two daughters were impleaded as Defendant Nos.4 and 5. R.S.A. No. 162 of 2020 Page 5 of 24 4. Defendant Nos.1 and 2 contested the suit by filing a joint written statement. It is stated that the original plaintiff entered into an agreement with Defendant No.1, who is the Secretary of the Trust on 24.7.2007 to sell the suit land in favour of the Trust due to want of money. He, being the Karta of the family executed the registered power of attorney by deed No.1010 dtd.28.7.2007 in favour of Defendant No.1 in the office of Sub-Registrar, Bhubaneswar authorizing him to sell the suit land and to construct an educational building. The original plaintiff being an educated person signed both the documents after understanding the contents thereof and had also purchased the stamp paper in his own name. The Defendant No.1, as power of attorney holder, executed the sale deed in favour of Defendant No.2 for consideration of Rs.4,33,680/- and delivered possession. Since the plaintiff obstructed her in construction of the College building, Defendant No.2 filed C.S. No.222/2008 and further set up his daughters to file another suit being C.S. No.5/2009. It R.S.A. No. 162 of 2020 Page 6 of 24 is the further case of the defendants that the suit land is the self-acquired property of the original plaintiff for which, his daughters have no right, title, interest or possession over the same. In the meantime, the defendants have converted the suit land to homestead land and gathered building materials for construction of the education building. 5. The Defendant No.3 also contested the suit by filing a separate written statement. It is stated that she purchased the suit land from defendant No.2 on valid consideration and due delivery of possession. Since then, he is possessing the suit land peacefully. It is his further case that the original plaintiff admitted his signature in the registered power of attorney, which has been executed in the name of Defendant No.1. As per the resolution of the trust, in order to meet the financial problem, Defendant No.1 alienated the entire suit property in favour of Defendant No.2 by executing the sale deed and also gave delivery of possession in her favour. R.S.A. No. 162 of 2020 Page 7 of 24 6. Defendant No.4 contested the suit by filing a separate written statement. She stated that she being the daughter of the original plaintiff, has a right over the suit land as the same is the ancestral property of her father. She also stated that Defendant No.1, by practicing fraud obtained the unregistered agreement for sale and the registered power of attorney. Defendant Nos.4 and 5 have never authorized Defendant No.1 to convert the suit land into homestead land. It is also stated that despite the aforementioned documents, the Defendant Nos.4 and 5 are in joint cultivating possession with their mother till now. 7. Defendant No.5 also contested the suit by filing separate written statement-cum-counter claim. She supported the relief claimed by her father in the suit by stating that it is their ancestral property and recorded in the name of her father. After his death, Defendant Nos.4 and 5 and their mother have 1/3rd share each. The suit property was never partitioned among them. R.S.A. No. 162 of 2020 Page 8 of 24 They are in joint possession by raising paddy crops and enjoying the usufructs equally. Her father was hostile towards Defendant No.4 and since the Defendant No.5 supported her, her father was also hostile to her. Under such circumstances her father had executed the unregistered agreement for sale and the registered power of attorney in favour of the Defendant No.1 without the knowledge and consent of Defendant Nos.4 and 5, which are illegal in the eye of law. As such, the same is not binding on them. Further, the consideration amount mentioned in the sale deed is very low as compared to the market price. She also stated that her father had no address at Bhubaneswar, which was fraudulently mentioned by Defendant No.1 in the registered power of attorney. Defendant No.5 also raised a counter claim for partition of the suit property and allotment of 1/3rd share thereof. Plaintiff filed a written statement to the counter claim by submitting that the suit land was acquired by R.S.A. No. 162 of 2020 Page 9 of 24 one Bairagi Sahoo, who is the grandfather of the original plaintiff. After death of Bairagi Sahoo, his son Dharmananda and the original plaintiff were possessing the suit land. Though the suit land was recorded in the name of the original plaintiff but she and Defendant Nos.4 and 5 are jointly possessing the same according to the law of succession. The plaintiff is maintaining herself out of the usufructs of the suit land and therefore, if it is partitioned at the instance of Defendant No.5, she will not be able to maintain herself as she has no other source of income. 8. Basing on the rival pleadings, the trial court framed the following issues for determination; the “1. Is the suit maintainable in the eye of law as well as facts? 2. Is there any cause of action to file the suit? 3. Is the suit hit under the provisions of estoppel and resjudicata? 4. Are of attorney dtd.28.07.2007 agreement the registered sale deed dtd.24.07.2007 and dtd.17.01.2008 are illegal and void documents which are obtained by practising fraud and not binding upon the plaintiff? 5. Is the plaintiff entitled to the relief prayed for? 6. To what other relief the plaintiff is entitled ? registered power unregistered and Additional Issues R.S.A. No. 162 of 2020 Page 10 of 24 7. Is the counter claim for partition by defendant No.5 is maintainable? 8. Is the suit schedule properties are partiable in nature? 9. Is the defendant No.5 is entitled to 1/3rd share from the suit land in case of partition? 10. To what other reliefs, the defendant No.5 is entitled?” 9. Taking up Issue No.4 for consideration at the outset, the trial Court examined the pleadings of the parties and the evidence adduced by them and took up for determination the question, whether the transaction between the deceased-plaintiff and defendant No.1 is genuine or sham and bogus. After analyzing the facts and evidence, the trial Court found that the unregistered agreement dted.24.7.2007 was never acted upon and therefore, not relevant. As regards the registered power of attorney dtd.28.7.2007, the trial Court found that as per the recitals of the document and the evidence adduced, it is evident that agreement was entered between the original plaintiff and Defendant No.1 only for construction of Engineering College over the suit land and nothing else. There was nothing in the power of attorney authorizing the Defendant No.1 to sell the suit land. R.S.A. No. 162 of 2020 Page 11 of 24 That apart, the power of attorney was executed in favour of Defendant No.1 in the capacity of Managing Trustee-cum- Secretary of the Trust and not in his personal capacity. Moreover, the legal necessity of the original plaintiff to sell the land was not proved. Thus, the trial court held that there is reasonable doubt as regards the genuineness and bonafides of the execution of the power of attorney. The trial Court further found that Defendant No.1 as attorney holder sold the suit land to Defendant No.2, who is none else than his wife and another trustee of the Trust for the purpose of meeting the financial assistance for development of educational purpose. It was also found that the power of attorney was neither executed nor authenticated by the Registrar or Sub-Registrar within the territorial jurisdiction of which the original plaintiff resided. Defendant No.1 also failed to prove the temporary address of the original plaintiff mentioned in the power attorney. On these facts, the trial Court therefore, held that Defendant No.1 had obtained the power of attorney by practicing fraud and R.S.A. No. 162 of 2020 Page 12 of 24 misrepresentation and therefore, the sale deeds executed by him subsequently are nominal documents. Moreover, a power of attorney holder cannot use the same for his own benefit as per the settled position of law. The main issue being answered in the above manner, the remaining issues were answered accordingly in favour of the Plaintiff. The counter claim filed by Defendant No.5 was rejected for non-inclusion of all the properties belonging to the family in the hotchpot, the same being a claim for partial partition. The suit was thus decreed by granting all reliefs as claimed by the plaintiff. 10. Being aggrieved, the Defendant Nos.1 to 3 carried the matter in appeal to the District Court on the ground that no fraud was played at any time and that the trial Court did not correctly appreciate the evidence on record. The First Appellate Court took note of the settled positon of law that in case of fraud, undue influence and coercion a party had to set forth full particulars thereof in his pleadings. Thereafter, the R.S.A. No. 162 of 2020 Page 13 of 24 First Appellate Court took note of the position of law that once a document is properly admitted, the contents thereof are also admitted in evidence. The First Appellate Court then looked at the evidence of D.W.1 and held that the same indicated that the contents of the documents were read over and explained to him which corroborates the averments in the sale deed, which shows that he was aware of the execution of the sale deed and no fraud was practiced by him. He further admitted that he has been provided with a room. It was also held that as the Plaintiff had signed on the power of attorney and the unregistered agreement in English, it proves that he is a literate person conversant with such language and therefore, it cannot be said that any fraud was played by the Defendants. Referring to the provision of Section 33 of the Registration Act and the principle of law settled by the Supreme Court, the First Appellate Court held that the original plaintiff had purchased the stamp paper at Bhubaneswar on 27.7.2007 where he resided temporarily for 2 days for the purpose of registration of R.S.A. No. 162 of 2020 Page 14 of 24 the General Power of Attorney. The First Appellate Court rejected the evidence of the wife of the original plaintiff on the ground that she had not seen taking of money by her husband. Basically on the above findings, the First Appellate Court allowed the appeal by reversing the judgment of the trial Court. 11. The Plaintiff has filed this appeal against the judgment of the First Appellate Court, which was originally admitted on the following substantial question of law; “Whether the learned First Appellate Court has correctly interpreted the law that when a document is admitted in evidence without objection the contents of the said documents are admitted?” However, in course of hearing, the following substantial question of law was also framed; “Whether the First Appellate Court was correct in deciding the appeal without for determination as framing points required under the provisions of Order 41, Rule 31 CPC ?”
Legal Reasoning
17. It is well settled that compliance of this provision is mandatory and its non-compliance makes the judgment vulnerable to challenge. The Supreme Court in the case of B.V. Nagesh Vs. H.V. Sreenivasa Murthy; reported in (2010) 13 SCC held as follows; jurisdiction therefore, reflect to “4.The appellate court has reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing, both on questions of fact and law. The judgment of the appellate court must, its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings (Vide Santosh Hazari v. Haturi Purushottam Purushottam Tiwari, (2001) 3 SCC 179), SCC p. 188, para 15 and Madhukurv Sangram [Santosh Tiwari R.S.A. No. 162 of 2020 Page 18 of 24 Madhukar v Sangram, (2001) 4 SCC 756), SCC p. 758 Para 5).” Further, the Supreme Court in the case of UPSRTC Vs. Mamta & Ors reported in (2016) 4 SCC 172 set aside the judgment of the Hon’ble High Court in a First Appeal for non-compliance of Order XLI Rule 31 of the CPC and the matter was remanded back. The Supreme Court in the aforesaid case held as follows; "24. As observed supra, as a first appellate court, it was the duty of the High Court to have decided the appeal keeping in view the powers conferred on it by the statute. The impugned judgment [U.P. SRTC v. Mamta, 2014 SCC Online All 14830) also does not, in our opinion, satisfy the requirements of Order 20 Rule 4(2) read with Order 41 Rule 31 of the Code which requires that judgment shall contain a concise statement of the case, points for determination, decisions thereon and the reasons. It is for this reason, we are unable to uphold the impugned judgment of the High Court." 18. On the contrary Mr. Bhuyan contends that if the First Appellate Court has considered all the materials referred to by the trial Court in its judgment, it can forego the mandate of Order 41 Rule 3 of C.P.C. In this context, Mr. Bhuyan has relied upon the judgment of the Apex Court rendered in the case of R.S.A. No. 162 of 2020 Page 19 of 24 G. Amalorpavam & Ors. Vs. R.C. Diocese of Madurai & Ors; (2006) 3 SCC 224. 19. So the legal position that emerges from the authorities cited at the bar is that ordinarily, the provision under Order 41, Rule 31 is mandatory. But if the Appellate Court, without framing specific points for determination has nonetheless considered all the grounds involved, then the judgment cannot be questioned on the ground of non-compliance of the provision. 20. Tested on the touchstone of the position of law as referred to hereinbefore, this Court finds that the trial Court had rendered specific findings on each of the issues framed by it, with the Issue No.4 being the central issue. The trial Court has further given specific reasons as to why the unregistered agreement dtd.24.7.2007 was not considered relevant and for doubting the genuineness of the registered power of attorney. All such findings are based on the pleadings and evidence adduced by the parties. It is the specific R.S.A. No. 162 of 2020 Page 20 of 24 finding that the power of attorney authorized Defendant No.1 to construct educational building like Engineering, Medical, MBA, MCA College, etc. over the suit land without any recital regarding sale of the suit land. That apart, the stamp paper was purchased in the name of the original plaintiff showing his address at Sampur, Jagatsinghpur on 27.7.2007, but the registration was done on 28.7.2007 by the DSR, Bhubaneswar by showing his address at Bhubaneswar, which was projected as his temporary address. There is also an endorsement made by the DSR on the instrument regarding address of the original plaintiff. Taking all such facts into consideration, the trial Court held that the power of attorney is not a genuine document. The sale of the suit land by Defendant No.1 as power of attorney holder to Defendant No.2, who is a trustee of the very same trust and the wife of Defendant No.1, was reason enough for the trial Court to suspect the genuineness thereof. The trial Court was guided by the judgment of this Court reported in OLR 2002 (2) 504 R.S.A. No. 162 of 2020 Page 21 of 24 wherein, it was held that the power or attorney holder cannot use the power of attorney for his own benefit. All these aspects and findings of the trial Court have not been gone into at all by the First Appellate Court who, without framing the specific points for determination decided the appeal somewhat superficially. As such, it cannot be held that the First Appeal was decided correctly and in consonance with the statutory provisions. Since there is an allegation of fraud and a finding has been given by the trial Court, it is incumbent upon the First Appellate Court to cite the grounds for holding that such findings were incorrect. Such an exercise was not done by the appellate Court at all. What is more surprising is that despite the pleadings and the evidence adduced, the First Appellate Court held that the power of attorney and the sale deed were admitted into evidence being marked without any objection. 21. For all the above reasons, this Court is of the considered view that the points involved in the appeal R.S.A. No. 162 of 2020 Page 22 of 24 were not decided properly by the First Appellate Court. As such, this Court holds that non-compliance of the provision under Order 41, Rule 31 of C.P.C. by the First Appellate Court in the impugned judgment is fatal. The question of law framed is answered accordingly. 22. In view of the findings on the above substantial question of law, it is evident that the appeal needs to be heard afresh taking into consideration all the issues involved for proper adjudication of the dispute between the parties. While giving its own findings, the First Appellate Court has not really explained as to how the findings of the trial Court are incorrect or wrong so as to justify the order of reversion. In the circumstances, there is no other option than to remit the matter to the First Appellate Court for hearing afresh.
Arguments
12. Heard Mr. Om Prakash Das, learned counsel for the Plaintiff-appellant and Mr. Bibekananda Bhuyan, R.S.A. No. 162 of 2020 Page 15 of 24 learned counsel appearing for the defendant- Respondents. 13. Mr. Das would argue that the First Appellate Court has dealt with the matter entirely on erroneous premises by treating the power of attorney as a sale deed. Further, the finding of the First Appellate Court is contrary to the evidence on record. In view of the specific findings rendered by the trial Court and the ground of challenge thereto, it was incumbent upon the First Appellate Court to have framed specific points for determination as required by the provision under Order 41, Rule 31 of C.P.C. The findings of the First Appellate Court regarding the fraud played by the defendants and the circumstances under which the power of attorney was executed were not considered at all by the First Appellate Court. 14. Per contra, Mr. Bhuyan has argued that if all questions involved in the appeal have been answered, the judgment of the First Appellate Court cannot be interfered with only for non-compliance of the R.S.A. No. 162 of 2020 Page 16 of 24 provision under Order 41, Rule 31 of C.P.C. On merits, Mr. Bhuyan would argue that the burden of proving fraud being heavy on the person who alleges it, the plaintiff in the instant case signally failed to do so. He being an educated person had signed in English and also admitted in his cross examination that he had understood the contents of the agreement before signing it. Merely on an allegation of fraud the presumption attached to the power of attorney under Section 85 of the Evidence Act cannot be rebutted. The evidence clearly shows that the plaintiff himself accompanied the Defendants for execution of power of attorney and registration of agreement, which was ignored by the trial Court. 15. In view of the grounds raised, this Court deems it proper to take up the second substantial question of law for determination at the outset, which is as follows; “Whether the First Appellate Court was correct in deciding the appeal without framing points for determination as required under the provisions of Order XLI, Rule 31 CPC ?” R.S.A. No. 162 of 2020 Page 17 of 24 16. It would be apposite to refer to the provision which reads as follows; “Order XLI Rule 31-The judgment of the appellate court shall be in writing and shall state (a) the points for determination, (b) the decision thereon, (c) the reasons for the decision, and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.”
Decision
23. For the foregoing reasons therefore, the appeal is allowed. The impugned judgment and decree are hereby set aside. The matter is remanded to the First Appellate Court to decide the appeal afresh by framing R.S.A. No. 162 of 2020 Page 23 of 24 specific points for determination in terms of the provision of Order 41, Rule 31 of C.P.C. and on the basis of the evidence already adduced by the parties. The suit being of the year 2008, the First Appellate Court shall do well to decide the appeal as early as possible, preferably within a period of four months from the date of communication of this order. 24. The L.C.R. be sent back forthwith. …………….……..………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.D.R.-cum-Addl. Principal Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 18-Mar-2025 15:26:27 R.S.A. No. 162 of 2020 Page 24 of 24