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Gauhati High Court · body

1995 DIGILAW 43 (GAU)

Nepal Chandra Ghosh v. Sudhir Ranjan Sharma

1995-02-14

N.G.DAS

body1995
This is an appeal against the judgment and decree of learned Subordinate Judge, West Tripura, Agartala dated 22nd December, 1976 which affirmed the decree of learned Munsiff, Sadar dated 24.3.1973. 2. The suit out of which this appeal arises was brought by the plaintiff, appellant herein in the Court of Munsiff, Sadar on 15.6.1966 AD for recovery of a sum of Rs.885/- as arrears of rent of the suit premises, namely, a room in a building under Ishanganj Bazar, Holding No.51 at Agartala Town. The suit was brought under the following circumstances. 3. One Nekbar Ali Bhuyan and one Chand Miah Bhuyan were the original owners of the aforesaid suit premises and while Nekbar Ali and Chand Miah were exercising possession over the suit premises they leased it out to defendant No. 1, namely, Sudhir Ranjan Sharma by executing a deed of lease on 11.5.1955 at a monthly rent of Rs.50/-. The case of the plaintiff was that although Nekbar Ali and Chand Miah put defendant No.l in possession of the suit premises by executing the aforesaid lease deed, they subsequently exchanged their properties in India along with suit premises with that of Gobinda Chandra Mandal alias Gobinda Chandra Biswas and Monohar Mandal alias Monohar Biswas in former East Pakistan through some Power of Attorney which was executed on 2.11.64. Gobinda and Monohar thus became the owners of the suit premises and after execution of this exchange deed the plaintiff-appellant purchased the suit premises by dint of a sale deed dated 19.2.65 AD and at the time of sale of the suit premises to the plaintiff both Gobinda and Monohar informed defendant No.l by means of a notice to pay the monthly rent to the plaintiff and also the arrears of rent amounting to Rs.100/-. 4. But the defendant No. 1 turned a deaf ear to the notice and claimed to have acquired title to the suit premises by dint of a sale deed which was executed in his favour by the learned Munsiff, Sadar on the basis of an exparte decree dated 25.11.65 passed in Title Suit No. 1 of 1965 which was brought by the defendant No. 1 against the original landlords, namely, Nekbar and Chand Miah for specific performance of a contract as per a deed of agreement dated 17.4.64. It was contended by the plaintiff that this deed of agreement was manufactured by defendant No. 1 and it was not genuine. The further case of the plaintiff was that as the original lease deed, by dint of which defendant No. l came to be in possession of the suit premises, was executed on 11.5.55 AD, the defendant No. l was bound to pay the rent by 10th of each English calendar month. But he having failed to do so, the plaintiff filed the instant suit for recovery of rent as stated above with costs. 5. The defendant No. 1, namely, Sambhu Charan Debnath was subsequently made a party as it came to the notice of the plaintiff that during pendency of the case the defendant No. l sold the suit premises to defendant No.2 Shri Sambhu Charan Debnath. The plaintiff, therefore, sought relief against the defendant No.2 also. 6. The defendant No. l resisted the suit by filing a written statement. He denied all the material averments of the plaint and contended further that although he came to be in possession of the suit premises by dint of the lease deed dated 11.5.55 which was executed by the original landlords he subsequently became owner of the suit premises by virtue of the sale deed that was executed by learned Munsiff on 21.5.66 on the basis of an exparte decree dated 25.11.65 which was passed in TS No. 1 of 1965. The contention of the defendant No. 1 was that both the original landlords executed a deed of agreement in his favour on 17.4.64 for sale of the suit premises at a consideration price of Rs.7,000/- and at the time of execution of the deed of agreement the original landlords took a sum of Rs.3,000/- as part payment and thereafter he also paid another sum of Rs. 1,000/- and the landlords in their turn also issued a receipt for the sum of Rs. 1,000/- in his favour. But thereafter both Nekbar and Chand Miah avoided execution of the sale deed in favour of the defendant No. 1 although he tendered the balance amount to them. 7. Hence he had to file TS 1 of 1965 for specific performance of the contract. But both the landlords did not contest the case. 1,000/- in his favour. But thereafter both Nekbar and Chand Miah avoided execution of the sale deed in favour of the defendant No. 1 although he tendered the balance amount to them. 7. Hence he had to file TS 1 of 1965 for specific performance of the contract. But both the landlords did not contest the case. The Court, therefore, passed the exparte decree and on the basis of that exparte decree learned Munsiff executed necessary sale deed transfering the suit premises in favour of the defendant No. 1. As such the relationship of landlords and tenant extinguished wef 174.64. 8. The defendant No.2 also resisted the suit by filing a separate written statement. He, however, adopted the contentions that were set forth by the defendant No. 1 in his written statement and contended further that the Power of Attorney dated 2.4.64 on the basis of which the sale deed was executed in favour of the plaintiff was a forged and fabricated document and it was created only for the purpose of the suit. It was contended that this Power of Attorney was neither executed properly nor it was authenticated by the competent authority as required by section 31 of the Indian Registration Act and as such no transfer/ creation of document on the basis of this power of attorney is tenable in law. The further contention of the answering defendants was that the suit premises being situate in Taksishi Taluk the right of original land owners extinguished wef 14th November, 1961 when all rights, interests etc. of Taluki land vested in the Government. Thus defendant No. 1 being a tenant on the date of vesting he became a tenant under the Government as relationship of landlord and tenant between Nekbar and Chand Miah on the one hand and defendant No. 1 on the otherhand ceased wef the date of vesting. It was, therefore, contended that plaintiff's suit was misconceived and it should be dismissed with costs. 9. Upon the pleadings learned Munsiff at first framed 5 issues for determination of the suit and after evalution of the evidence adduced by the parties he dismissed the suit. The plaintiff preferred an appeal which was allowed and suit was remanded to the trial Court for fresh trial in the light of the observations made by the first appellate Court. Thereafter learned Munsiff framed 6 additional issues including the issue the viz. The plaintiff preferred an appeal which was allowed and suit was remanded to the trial Court for fresh trial in the light of the observations made by the first appellate Court. Thereafter learned Munsiff framed 6 additional issues including the issue the viz. “whether Taluki right of the original owners extinguished by operation of the provisions of Tripura Land Revenue and Land Reforms Act, 1960.” Both the parties adduced evidence but after appreciation of the evidence on record learned Munsiff again dismissed the suit without costs. The plaintiff preferred the appeal but the first appellate Court also dismissed the appeal. Hence this second appeal. 10. It would be apparent from the pleadings narrated above that the real question in controversy between the parties related to the genuineness of Power of Attorney marked as Ext. 9 which is alleged to have been executed on 2.4.1964 AD by Nekbar Ali Bhuiya and Chand Miah Bhuiya, the admitted owners of the suit premises before the Notary Public, Chittagaon. The contention of the defendants was that this Power of Attorney on the basis of which the exchange deed was executed was not a genuine one as it was neither executed by the owners of the property, namely, Nekbar Ali and Chand Miah nor was it authenticated according to law. The Courts below particularly the appellate Court after elaborate discussion of the evidence on record arrived at the conclusion that this Power of Attorney was not executed before the Notary Public who gave an endorsement of authentication on the last page of the document. 11. Mr.Deb, the learned counsel appearing on behalf of the appellant contended that since the Notary Public gave the endorsement to the effect that it was duly authenticated by him, the presumption would be that the Notary Public satisfied himself in discharge of his official duties that the persons who executed it were the proper persons. In support of his contention Mr. Deb has placed reliance on the decision of the Supreme Court rendered in the case of Jugraj Singh & another vs. Jaswant Singh & others reported in AIR 1971 SC 761 . In this case the first Power of Attorney which was executed by one Vernon Seth Chotia was rejected by their Lordships on the ground that it did not comply with the requirement of law. In this case the first Power of Attorney which was executed by one Vernon Seth Chotia was rejected by their Lordships on the ground that it did not comply with the requirement of law. But as regards the second Power of Attorney the endorsement which made by the Notary Public was considered to be proper. The endorsement which the Notary Public made in the second Power of Attorney was as follows : “ Subscribed and sworn to before me this 23rd day of March, 1965 Betly J.Botelko Notary Public in and for the Country of Alameda, State of California.” The complaint against this endorsement was that the Notary Public did not say in his aforesaid endorsement that Mr. Chawla the Attorney had been identified to his satisfaction. But their Lordships held that since the Notary Public endorsed on the document that it had been subscribed and sworn before him the presumption is that he satisfied himself in discharge of his duties that the person who was executing was the proper person. Thus this second Power of Attorney was found valid and effective both under section 85 of the Indian Evidence Act and section 33 of the Indian Registration Act. 12. Keeping the above observation of the Apex Court in view, we may now proceed to examine the exact endorsement which the Notary Public made in the Ext. A/9 Power of Attorney. In the Ext. A/9 Power of Attorney the endorsement which the Notary Public of Chittagaon of East Pakistan made reads as under: “ These are the true signatures of executants duly identified by the witnesses. This general power of attorney dated 2nd April, 1964 has been authenticated. Nabidur Rahman ESQR LLB, Notary Public Chittagaon East Pakistan.” On the margin of this document it is found that signatures were taken by one Abdul Gafur Majumder, the Pleader. The signatures endorsed the writtings/ recitals of the document. Learned first appellate Court did not accept this Power of Attorney as a genuine one on the grounds viz. Nabidur Rahman ESQR LLB, Notary Public Chittagaon East Pakistan.” On the margin of this document it is found that signatures were taken by one Abdul Gafur Majumder, the Pleader. The signatures endorsed the writtings/ recitals of the document. Learned first appellate Court did not accept this Power of Attorney as a genuine one on the grounds viz. (i) the endorsement noted above did not show that the executants being duly identified put their signatures in presence of the Notary Public; (ii) the stamp papers of Ext.A/9 were purchased from Comilla on 17.3.1964 but the Power of Attorney was authenticated in Chittagaon and no reason was assigned as to why this Power of Attorney was not produced before the Notary Public or the Sub-Registrar of Comilla for authentication; (iii) no evidence was let in to show that Abdul Gafur Majumder, the Pleader actually identified the executant before the Notary Public, and (iv) although the endorsement show that the true signatures of the executants were identified by witness, the Power of Attorney does not contain signature of any witness. It has also been pointed out by the first appellate Court that recitals at pages 7 and 8 of the Power of Attorney being typed over the signatures inculcated the impression that the signatures were taken before typing. 13. But Mr. Deb has contended has since the word 'authentication' has not been defined anywhere in the Indian Registration Act the ordinary meaning which is available from Black's Dictionary has to be taken in view and since the Notary Public has made the endorsement of authentication it has to be inferred in view of the provisions under section 85 of the Indian Evidence Act that the Power of Attorney was duly executed before him and as such authentication was proper. It is true that the expression: 'authentication' has not been defined in the Indian Registration Act. But Mr. Bhowmik, the learned counsel appearing on behalf of the respondents has in his reply submitted that unless execution was proved i.e. unless it is proved that executants put their signatures in presence of the Notary Public the question of authentication does not arise. In this context it will be useful to look into the provisions laid down under section 32 and 33 of the Indian Registration Act. In this context it will be useful to look into the provisions laid down under section 32 and 33 of the Indian Registration Act. A perusal of these two provisions will show that section 32 would apply only if a Power of Attorney is presented for registration and not when it produces merely for authentication in which case the only requirements that to be complied with are those set out in section 33. In the instant case the relevant provision with which we are now concerned is section 33 (1), clause (c) which reads : “ 33. For the purpose of section 32, the following power of attorney shall alone be recognized namely...... (c) If the principal at the time aforesaid does not reside in India, a power of attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul or representative of the Central Government.” 14. A careful perusal of this clause will make it abundantly clear that the Power of Attorney has to be executed before the Notary Public and thereafter it has to be authenticated by him. So, the first essential thing which is needed to be proved is execution. In other words, {apart from the cases covered by the proviso), section 33 requires that the Power of Attorney has not only to be executed before the Notary Public/Sub Registrar but it has to be authenticated by the Notary Public/Sub Registrar as the case may be. 15. In the instant case it will appear from the endorsement in Ext.A/9 Power of Attorney noted above that Notary Public did not specifically state that it was executed before him. The endorsement, however, indicates that it was authenticated. But the scope of the section as discussed above will show that the Power of Attorney must be executed before and then authenticated by the Notary Public. So where the genuineness of the Power of Attorney is challenged it is incumbent upon the party to prove execution before the Notary Public and in absence thereof no presumption in favour of the Power of Attorney can be taken. Mr.Deb has, however, quite strenuously argued that the word 'authentication' has not been defined in the Indian Registration Act. It is true that the word 'authentication' has not been defined but in the law of evidence authentication is not merely attestation but something more. Mr.Deb has, however, quite strenuously argued that the word 'authentication' has not been defined in the Indian Registration Act. It is true that the word 'authentication' has not been defined but in the law of evidence authentication is not merely attestation but something more. It means the person authenticating has assured himself of the identity of the person who has signed the instrument as well as the fact of execution. I have discussed the reasons which the learned appellate Court assigned for rejection of this Power of Attorney, Ext/9 as genuine one and I, too, on a careful scrutiny of the instrument and the other facts which have been proved in the case find no reason to disagree with the findings of the first appellate Court. The endorsement given by the Notary Public does not indicate that he satisfied himself as to the identity of the persons who put their signatures on the instrument and it also does not transpire from the recitals of the instrument that the executants actually put their signatures in his presence or that they were identified by any witness. 16. The next question which comes up for consideration is whether the suit is maintainable in view of the provisions of section 134 of the Tripura Land Revenue and Land Reforms Act, 1960 (hereinafter referred to as the Act). Mr. AK Bhowmik, the learned senior counsel appearing on behalf of the respondents contended that the defendants specifically averred under para 18 of the written statement that the suit was not maintainable as the original owners were divested of all their rights after the date of vesting of the taluki right. On examination of the records I find that learned trial Court also framed an issue on this question and the issue reads: “ Was the Taluki right of the original owners viz. Nekbar Bhuiya and Chand Miah Bhuiya to the suit land fully extinguished by operation of the Tripura Land Revenue and Land Reforms Act, 1960 prior to the execution of the exchange deed ?” According to the plaint the exchange deed was executed on 2.11.64. It is not disputed that necessary notification under section 134 (1) of the Act was issued by the Administrator long before institution of this suit. It is not disputed that necessary notification under section 134 (1) of the Act was issued by the Administrator long before institution of this suit. Section 134(1) of the Act provides that as soon as may be after the commencement of this Act, the State Government may, by notification in the Official Gazette, declare that, with effect from the date specified in the notification (hereinafter referred to as the vesting date), all estates situated in any area or areas and all rights, title and interest of every intermediary in such estates shall vest in the Government free from all encumbrances. From the document filed in the suit it is clear that the suit land is a part of taluki land. The expression 'intermediary' has been defined under section 133 (c) of the Act and according to clause (c) of section 133 of the Act intermediary means a person who holds in an estate the right, title or interest of a talukdar. In view of this definition Nekbar Bhuiya and Chand Miah Bhuiya must be regarded as talukdars respecting the suit premises and as such the notification issued under section 134 (1) of the Act also applied to them and also to the suit land. 17. The next section which is relevant for the purpose is section 135 which states, inter alia, that notwithstanding anything contained in any law for the time being in force or in any agreement or contract, express or implied with effect from the vesting date, each estate to which the notification relates and all rights, title and interest of intermediaries in such estate shall vest in the Government free from all encumbrances and that all grants and confirmation of title to the estate and rights therein made in favour of an intermediary shall cease and determine. Clause (f) of section 135 of the Act says that all rents and other dues in respect of the estate for any period after the vesting date which but for this Act, would be payable to an intermediary shall be payable to the Government and any payment made in contravention of this clause shall not be valid discharge of the person liable to pay the same. Clause (g) of the same section further provides that where under any agreement or contract made before the vesting date, any rent, cess, local rate or other dues for any period after the said date has been paid to or compounded or released by an intermediary, the same shall, notwithstanding such agreement or contract, be recoverable by the Government from the intermediary and may, without prejudice to any other mode of recovery, be realised by deduction from the compensation payable to the intermediary. 18. A careful persual of all the provisions mentioned above leave no room for doubt on the point that with effect from the vesting date the intermediary ceased to have any claim to the estate held by him and that with effect from that date all rights respecting the estate are enforceable only by the Government to the entire exclusion of the erstwhile intermediary. 19. That the intermediary will have no right whatsoever to the taluki land is further reinforced by the provisions made under Chapter XII under the heading 'Assessment and Payment of Compensation.' Section 140 of the Act envisages that every intermediary, whose right, title and interest in any estate vest in the Government under Chapter XI shall be entitled to receive and be paid thereof compensation as hereinafter provided. Section 141 of the Act makes it further clear that from the date of vesting intermediary will cease to have connection with the estate excepting his right to realise the compensation from the Government. 20. Mr. Deb has also argued that the trial Court did not decide all the issues and as such in view of the provisions laid down under Order 20 Rule 2 of CPC the judgment of the Court below are liable to be set aside and the suit is to be remanded for fresh trial. But in view of my decision as regards the Power of Attorney Ext. A/9 and maintainability of the suit in view of section 134 of the Act, I am of the view that there will be no point of remanding the suit for fresh trial. The judgment of the first appellate Court virtually covered all important questions involved in the case. 21. Mr. Bhowmik also argued that the suit was not maintainable as the plaintiff did not make any prayer for setting aside the exparte decree dated 25.11.65 passed in TS 1 of 1965. The judgment of the first appellate Court virtually covered all important questions involved in the case. 21. Mr. Bhowmik also argued that the suit was not maintainable as the plaintiff did not make any prayer for setting aside the exparte decree dated 25.11.65 passed in TS 1 of 1965. It is true that the plaintiff did not make any specific prayer for setting aside the aforesaid exparte decree. But in view of my decisions recorded above this point does not call for any decision. 22. No other point was urged in this Court by the parties counsel. 23. In the result, the appeal fails and is accordingly dismissed with costs.