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Gauhati High Court · body

2002 DIGILAW 11 (GAU)

Saifuddin Laskar v. Ajmad Hussain Laskar

2002-01-07

AFTAB H.SAIKIA

body2002
A.H. SAIKIA, J. — The judgment and decree dated 8.4.96 passed by the learned District Judge, Cachar, Silchar in title Appeal No. 19 of 1994 affirming the judgment and decree dated 14.6.89 passed by the learned Assistant District Judge No.2 , Cachar, Silchar in title Suit No. 78/86 by which the suit of the appellant/plaintiff was dismissed, is under challenge in this Second Appeal. The following substantial question of law was formulated at the time of admission of this Appeal: "Whether the registered deed Exbt. 7(a) revoking the power of attorney executed in favour of the Defendants No. 7 on 8.1.81 and registered on 31.1.81 would be effective from 8.1.81 to 31.1.81. 2. Heard Mr. G.N. Sahewalla, learned senior counsel assisted by Mr. P. Bora, learned counsel for the appellant. Also heard Mr. C.K. Sarma Barua, learned senior counsel assisted by Mr. HRA Choudhury, learned counsel for the respondents. 3. Admittedly this Second Appeal has been preferred against the concurrence findings of the Courts below. 4. Briefly stated, the facts of the case, are that the plaintiff/appellant instituted a Title Suit being No. 78/86 for declaration of his right, title and interest over the suit land and confirmation and recovery of khas possession and also for cancellation of registered sale deed mentioned in the plaint. Being related, the plaintiff/appellant and the defendant Nos. 6 to 11 along with father of the proforma Defendant Nos. 12 to 16 and husband of the Defendant No. 17 had inherited the entire ancestral property left by the respective ancestors. Thereafter the defendant Nos. 6 to 11 who were mother, sisters and brothers of the plaintiff/appellant by a registered sale deed on 1.3.72 sold their interest which was suit land to the plaintiff/appellant and delivered the possession to him. On the same date the plaintiff also executed a registered ekrarnama in favour of the proforma defendant Nos. 6 to 11 promising to recovery the land provided they repay the whole amount from their own earning within 10 years. The aforesaid defendants failed to repay the amount and on the other hand filed the Title suit No. 95/80 to get re-conveyance as stipulated in the ekrarnama and thereafter at the intervention of the well wishers including the defendant Nos. 1 to 4 there was an amicable settlement and the plaintiff agreed to reconvey the aforesaid land to defendant Nos. The aforesaid defendants failed to repay the amount and on the other hand filed the Title suit No. 95/80 to get re-conveyance as stipulated in the ekrarnama and thereafter at the intervention of the well wishers including the defendant Nos. 1 to 4 there was an amicable settlement and the plaintiff agreed to reconvey the aforesaid land to defendant Nos. 6 to 11 for which the Title Suit No. 95/80 was withdrawn by the defendants. It was also settled that the plaintiff would recover the entire land of Kabulnama dated 1.3.72 (Ext. 7) to defendant Nos. 6 to 11 and consequently the defendant Nos. 6 to 11 executed a Baina patra on the same day in respect of the land described at Schedule 2 of the land undertaking to re-sell the same to the plaintiff. Thereafter the defendant Nos. 6, 8 to 11 executed a general power of attorney dated 2.9.80 appointing defendant No. 7 as their attorney f6r the purpose of reconveyance deed etc. As the plaintiff and the defendant Nos. 6 to 11 came to an amicable settlement, it was decided among the defendant Nos. 6 to 11 that there was no necessity of continuation of the aforesaid power of attorney and accordingly a memorandum was drawn on 4.1.81 between the proforma defendant Nos. 6 to 11 as first party and defendant No. 7 as the second party whereby the aforesaid power of attorney dated 2.9.81 was cancelled and the defendant No. 7 was divested of the power given in the power of the attorney. In terms of the settlement the plaintiff/appellant executed a reconveyance deed in respect of entire land purchased by him through Kabulnama dated 1.3.72 in favour of defendant Nos. 6 to 11 who had sold the same to the plaintiff in terms of the baina patra. Subsequently, the plaintiff resold it to defendant Nos. 6 to 11. Accordingly the entire suit land became the property of defendant Nos. 6 to 11 and defendant No. 7 by executing 3 (three) Kabulnama Exbt. B, G and H transferred three bighas of land to defendant No. 1 to 4 on 9.1.81 on behalf of himself and on behalf of defendant Nos. 6 to 8 to 11 on the strength of the power of attorney which was cancelled by executing a deed on 8.1.81 and subsequently by registered deed dated 31.1.81. 5. B, G and H transferred three bighas of land to defendant No. 1 to 4 on 9.1.81 on behalf of himself and on behalf of defendant Nos. 6 to 8 to 11 on the strength of the power of attorney which was cancelled by executing a deed on 8.1.81 and subsequently by registered deed dated 31.1.81. 5. I have carefully examined the impugned judgment and decree passed by the Courts below and on meticulous perusal of the impugned judgment it is found that both the Courts below in deciding the issue Nos. 6-7 held that the entire suit land became the property of defendant Nos. 6-11 and defendant No. 7 on behalf of himself and on behalf of defendant Nos. 6,8 to 11 sold the suit land to the defendant Nos. 1 to 5, and defendant No. 7 was duly empowered to execute the sale deed on their behalf. 6. In order to appreciate the findings of the Courts below, it would be appropriate to extract the relevant portion in paragraph 6 of the judgment of the appellate Court below as follows : "From careful perusal of the discussions made by the learned trial Court while deciding issue Nos. 6 and 7,1 find that he has dealt with every piece of materials on record both oral and documentary and recorded the impugned findings dismissing the suit of the plaintiff-appellant as not being entitled to any relief in the suit. In course of argument the learned advocate for the appellant has argued that the power of attorney on the strength of which defendant No. 7 stated to have executed the sale deeds exts. B, G and H, etc. on behalf of the defendant Nos. 6 and 8 to 11 are not on record and as such the said defendant cannot be said to have any power to execute the sale deeds in favour of defendant Nos. 1 to 5. But from the materials on record what I have discussed above, it is established that the power of attorney was cancelled and the subsequent deed of agreement was drawn between the defendants 6, 8 to 11 empowering defendant No. 7 to execute the sale deeds on their behalf. 1 to 5. But from the materials on record what I have discussed above, it is established that the power of attorney was cancelled and the subsequent deed of agreement was drawn between the defendants 6, 8 to 11 empowering defendant No. 7 to execute the sale deeds on their behalf. In view of the aforesaid materials on record I am of the opinion that defendant No. 7 had every right to execute the aforesaid sale deeds on behalf of other defendants and the sale of the suit land by the plaintiff in favour of the defendants 6 to 11 has also been established from the materials on record and subsequent sale of the suit land by defendant No. 7 to defendants 1 to 5 on behalf of defendants 6 and 8 to 11 has also been established and under such circumstances, I am of the opinion that the plaintiff is not entitled to the relief of declaration and recovery of possession under the facts and circumstances of the case." 7. That being the factual position, this Court is not in a position to deal with the substantial question of law formulated above. It clearly appears on careful perusal of the materials available on record and upon hearing the rival contentions of the learned counsel for the parties, the issue formulated as substantial question of law above mentioned cannot even be accepted as question of law not to speak of substantial question of law. The cancellation of the power of attorney in favour of defendant No. 7 by the defendant Nos. 6 and 8 to 11, it appears, is not in any way going to effect the factual situation of the case in hand. Consequently, it is held that the impugned judgment and decree needs no interference by this Court. 8. In the result, the appeal stands dismissed. No costs. Interim order passed, if any, shall stand vacated.