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2003 DIGILAW 137 (GAU)

Panna Lal Ghosh v. Nani Gopal Ghosh and Ors.

2003-03-27

B.B.DEB, RANJAN GOGOI

body2003
R. GOGOI, J. — Both the letters patent appeals being directed against the common Judgment and Order passed by the learned Single Judge of this Court are taken up for consideration together and are being disposed of by the present Judgment and Order. 2. The appellants in LPA No. 13/1997, i.e., Sri Pannalal Ghosh and others instituted a suit being Title Suit No. l/1988 (earlier No. T.S. 12/1976) in the Court of learned District Judge, North Tripura, Kailashahar praying for a declaration that the deed of "Nadabi"(deed of relinquishment) executed by the defendant No. 1 on 28.8.1990 in favour of the defendant Nos. 2 and 3 in the suit is null and void and inoperative in law. Further consequential relief for declaration of the plaintiffs' right, title and interest in the land described in the Schedule-A to the plaint and for recovery of possession of the land mentioned in Schedule-B to the plaint were prayed for by the plaintiffs in the suit. 3. The case of the plaintiffs', in short, is that Late Akhil Chandra Ghosh, the predecessor in interest of the plaintiffs, owned vast landed properties and that after the death of Late Akhil Chandra Ghosh, the plaintiffs along with defendant No. 1, who is the eldest son of late Akhil Chandra Ghosh inherited the properties in equal share. The plaintiff Nos. 2 to 9 in the suit appointed the defendant No. 1 as their constituted attorney to look after their inherited properties and for the said purpose a power of attorney was executed by the plaintiff Nos. 2 to 9 in favour of the defendant No. 1 on 9.2.65. By the aforesaid power of attorney dated 9.2.65, the plaintiff No. 1, who was the second son was also appointed as the constituted attorney of the other plaintiffs along with defendant No. 1. However, the plaintiff No. 1 on 18.7.70 executed a power of attorney in favour of the defendant No. 1. It is the case of the plaintiffs that the defendant No. 1 fraudulently and in collusion with the defendant Nos. 2 and 3 executed a Nadabi deed in favour of the said defendant Nos. 2 and 3 on 28.8.70 after taking a sum of Rs. 10,501/- and on the strength of the aforesaid deed of Nadabi, the defendant Nos. 2 and 3 forcibly entered and occupied the land mentioned in Schedule-B to the plaint. 2 and 3 executed a Nadabi deed in favour of the said defendant Nos. 2 and 3 on 28.8.70 after taking a sum of Rs. 10,501/- and on the strength of the aforesaid deed of Nadabi, the defendant Nos. 2 and 3 forcibly entered and occupied the land mentioned in Schedule-B to the plaint. The plaintiffs thereafter on enquiry could obtain a copy of the deed of Nadabi on 7.8.73 and in the aforesaid circumstances instituted the suit in question claiming the reliefs earlier stated. 4. The defendant No. 1 in the suit filed his written statement, but thereafter did not contest the proceeding. The remaining defendants including the defendants Nos. 2 and 3 contested the suit by claiming to be the owner of the suit land which they contended, have been purchased by them in part, whereas the remaining lands were taken by them on settlement from late Akhil Chandra Ghosh. 5. That on the pleadings of the parties, the learned Trial Court framed as many as 7(seven) issues for trial in the case. The learned District Judge vide Judgment and Order dated 31.8.88 found that the deed of Nadabi executed by the defendant No. 1 in favour of the defendant Nos. 2 and 3 was completely unauthorised and in excess of the power conferred on the defendant No. 1 by the power of attorney dated 9.2.65 and 28.8.70 and on that basis, thought proper to hold that the Nadabi deed executed on 28.8.70 was void and inoperative in law. A declaration to that effect was consequently issued by the learned District Judge. In so far as the claim of the plaintiffs for declaration of right, title and interest and for recovery of possession of the suit property, the learned Trial Court having found that such claims of the plaintiffs to be founded on the basis of the decree obtained by their predecessor-in-interest, late Akhil Chandra Ghosh and also on the basis of delivery of possession in pursuance of the execution of the several decrees passed in favour of late Akhil Chandra Ghosh, though it proper to decree the plaintiffs' suit for declaration of right, title and interest and for recovery of possession in so far as Items (i) to (v) of Schedule-A and B to the suit. In so far as the properties mentioned in Items (vi) and (vii) of the two Schedules to the plaint, the learned Trial Court found that the land in respect of which declaration and possession was prayed for on the basis of a decree passed in Title Suit No. 72/1958 was in respect of an area of 25 acres of land covered by Plot No. 281 and on that basis, though it proper to decree the plaintiffs' suit only to the said extent, i.e., 25 acres. It may be noticed at this stage that the learned Trial Court while decreeing the plaintiffs' suit as aforesaid and in dismissing the defendants' claim to the suit land also found that the claim of the defendants to the suit land, being partly on the basis of purchase made by them, having regard to the date of purchase as claimed, the learned Trial Court held such purchases to be governed by the doctrine of lis pendents, i.e., subject to the decree/decrees passed earlier in favour of the predecessor-in-interest of the plaintiffs. In so far as the claim of the defendants to parts of the suit land on the basis of settlement from late Akhil Chandra Ghosh is concerned, the learned Trial Court held that the defendants did not adduce any evidence to prove such settlement. 6. The defendants in the suit being aggrieved by the decree passed by the learned Trial Court instituted RA. No. 17/1988 before this Court against the decree passed by the learned Trial Court decreeing the plaintiffs suit as noticed hereinabove. In so far as the decree in respect of 25 acres of land under Items (vi) and (vii) of the Schedule-A and B to the plaint as passed by the learned Trial Court, the plaintiffs instituted a cross objection/appeal which has numbered as F. A. 2/1989. The learned Single Judge before whom both the cases came up for hearing vide Judgment and Order dated 1.8.1997 maintained the decision of the learned Trial Court in so far as the declaration that the Nadabi deed is void, illegal and inoperative in law is concerned. In so far as the decree of declaration and recovery of possession passed by the learned Trial Court is concerned, the first appellate Court upheld the said decree, but only in so far as Items (i) to (v) of Schedule A and B to the plaint. In so far as the decree of declaration and recovery of possession passed by the learned Trial Court is concerned, the first appellate Court upheld the said decree, but only in so far as Items (i) to (v) of Schedule A and B to the plaint. The decree in so far as 25 acres of land covered by the Items (vi) and (vii) of the Schedule A to the plaint is concerned, was interfered with by the learned first appellate Court. Consequently. F.A. No. 17/1988 was partly allowed, whereas F.A. No. 2/1989 was dismissed: Aggrieved, both the parties have come before this court through the present letters patent appeals. 7. We have heard Mr. S.P. Datta Purkayastha, learned counsel appearing on behalf of the appellants in LPA No. 13/1997, who are the respondents in LPA No. 1 1997. We have also heard Mr. S. Deb, learned senior counsel appearing on behalf of the appellants in LPA No. 14/1997. The aforesaid appellants in LPA No. 14/1997 are the respondents in LPA No. 13/1997. 8. Very elaborate and weighty arguments have been advanced by the learned counsel appearing for the respective parties and we may briefly attempt to summarize the said arguments. It is the contention of Mr. S. P. Datta Purkayastha, learned counsel for the appellants in LPA No. 13/1997 that the power of attorney dated 9.2.65 and 18.8.70 executed by all the plaintiffs in favour of the defendant No. 1 did not confer any power on the constituted attorney, i.e., defendant No. 1, to execute any deed of relinquishment. The learned counsel has contended that powers conferred by a deed of attorney has to be strictly construed and the correct limits of such power must be identified. In the instant case by referring to the two different deeds of attorney, learned counsel has contended that what is evident from the aforesaid two deeds is the intention of the grantors to confer power on the attorney holder to run and manage the properties for the beneficial use and enjoyment thereof. There is no express conferment of any power to relinquish any interest in the properties; no such power can even be remotely inferred from the language used in either of the deeds. There is no express conferment of any power to relinquish any interest in the properties; no such power can even be remotely inferred from the language used in either of the deeds. Consequently, the deed of Nadabi executed by the defendant No. 1 allegedly on the strength of the deed of attorney must be declared to be void and inoperative and further because some consideration has passed between the parties to the deed as mentioned in the recitals thereof, which amount is wholly disproportionate to the value of the properties, an inference of fraud and collusion must also follow. A deed of relinquishment cannot confer title where non-exists; it can enlarge the title, but can confer none, it is argued. Reliance has been placed on a Judgment of the Bombay High Court in Provident Investment Co. Ltd., Appellant-Vs-Commr. of Income Tax, Bombay City, Respondent, reported in AIR 1954 Bombay 95 as well as a Judgment of the Madras High Court in the Board of Revenue, Madras, Petitioner-Vs-Rm. L. Rm .L. Lakshmanan Chettiar, Respondent, reported in AIR 1970 Madras 348. A Judgment of the Hon'ble Apex Court in Kuppuswami Chettiar, Appellant-Vs-A.S.PA. Arumugam Chettiar and another, Respondent, reported in AIR 1967 SCI 395 and did not come to tender evidence in support of the plea set up by him in the written statement. Under such circumstances an adverse inference must follow, contends the learned counsel. Reliance in this regard has been placed on the Judgment of the Hon'ble Apex Court in Vidhyadhar, Appellant-Vs-Manikrao and another, Respondents, reported in AIR 1999 SC 1441 . 9. The learned counsel for the appellants in LPA No. 1371997 has further argued that the defendants in the suit had utterly failed to prove and establish their claims to the suit land. Such part of the suit land which was alleged to be purchased from the defendant Nos. 7 and 8 and others, who were strangers to the suit were all subsequent to the date of decree(s) obtained in respect of the suit land by the predecessor-in-interest of the plaintiffs. Such purchase must therefore be understood to the subject to the decree(s) and the execution of such decree(s) by virtue of which the plaintiffs, who put in possession of the suit land. Such purchase must therefore be understood to the subject to the decree(s) and the execution of such decree(s) by virtue of which the plaintiffs, who put in possession of the suit land. In so far as the claims to the suit land which are founded on settlement allegedly Ghosh is concerned, the learned counsel has contended that no Kabuliyat or patta evidencing any such settlement has been proved by the defendants to enable any conclusive decision in their favour. The learned counsel has further contended that the land in question had vested in the State Government defendants in the suit to prove settlement by Late Akhil Chandra Ghosh prior to 15.4.63 or thereafter by the government. The defendants have failed to prove any of the aforesaid facts. On the aforesaid broad basis, Mr. S.P. Datta Purkayastha, learned counsel has argued that the order passed by the learned Trial Court as upheld by the learned first appellate Court in so far as the declaration in respect of the Nadabi deed and Items (i) to (v) of the suit property is concerned should be maintained. In so far as Items (vi) and (vii) of the suit property is concerned, it is contended that the claim of the plaintiffs to the entire of the suit property under the aforesaid two items, i.e., Items(vi) and (vii) should be allowed. 10. Mr. S. Deb, learned senior counsel appearing on behalf of the appellants in LPA No. 14/1997 in course of his arguments has contended that the Issue No. 4 as framed in the suit goes beyond the pleadings inasmuch as no pleading of fraud or collusion in respect of the execution of the Nadabi deed was brought on record by the plaintiffs. The findings of the learned Trial Court that the aforesaid Nadabi deed was executed by the defendant No. 1 in collusion with the defendant Nos. 2 and 3 is based on no evidence and deserves to be set aside. No finding of such fraud or collusion, according to learned counsel would follow on the failure of the defendant No. 1 to depose in the case. 2 and 3 is based on no evidence and deserves to be set aside. No finding of such fraud or collusion, according to learned counsel would follow on the failure of the defendant No. 1 to depose in the case. The learned counsel by referring to a Judgment passed in another suit being Title Suit No. 727 1958, wherein Late Akhil Chandra Ghosh was one of the contesting parties had contended that a finding has been recorded in the said Judgment that Late Akhil Chandra Ghosh had admitted in the said suit i.e., T.S. 72/1958 that he had no land in Pabiacherra Mouja. The suit of the plaintiffs being in respect of the land allegedly owned by Late Akhil Chandra Ghosh in Pabiacherra Mouza must therefore fail. The learned counsel has further argued that the defendants in the suit do not claim title on the basis of Nadabi deed. They had a pre-existing right to the suit property which was further strengthened by the Nadabi deed. Lastly it has been contended by the learned counsel that admittedly in the instant case the lands claimed by the plaintiffs to be Taluki Estate of Late Akhil Chadra Ghosh vested in the State Government with effect from 15.4.63 by virtue of the Notification issued under Section 134 of the Tripura Land Revenue and Land Reforms Act, 1960. After such lands had vested in the State Government, the right of an intermediary to which class Late Akhil Chandra Ghosh belonged, has to be claimed under Section 136 of the Tripura Land Revenue and Land Reforms Act, 1960 and such claim must be recognised by the Government. No evidence has been forthcoming from the side of the plaintiffs in this regard to enable this Court to recognise any legitimate right of the plaintiffs to the lands claimed. The decree(s) as obtained by Late Akhil Chandra Ghosh have become inoperative in law after the vesting the land in the State Government by virtue of the provision of the Act and no claim on the basis of the said decree(s) can be legally enforced, the learned counsel contends. The operation of the statute nullifies the decree(s) and the statute recognises limited rights of the intermediary under Section 136 of the Act and prescribes a distinct and definite mode of recognition of such rights after the date of vesting. The operation of the statute nullifies the decree(s) and the statute recognises limited rights of the intermediary under Section 136 of the Act and prescribes a distinct and definite mode of recognition of such rights after the date of vesting. No materials whatsoever has been adduced by the plaintiffs to establish any such right. The learned counsel by referring to certain documents which the learned first appellate court had permitted to be brought on record has contended that the orders passed in the various lands ceiling proceeding against Late Akhil Chandra Ghosh, which formed the core of the additional documents, shows certain lands allowed to be retained by Late Akhil Chandra Ghosh in Pabiacherra Mouza which is distinct and different from the suit land. The plaintiffs therefore, have no right either to the declaration as granted by the learned Trial Court and the learned first appellate court nor they would be entitled to reclaim possession of such lands. 11. Before proceeding to consider the various arguments and counter arguments advanced on behalf of the rival parties it will be necessary to briefly indicate the contours of the power of this court while hearing a letters patent appeal. The limitations imposed by Section 100 of the CPC would definitely not be applicable to a letters patent appeal in view of the clear language of Clause 15 of the letters patent granted to the Calcutta High Court by the Royal Charter under which provision these appeals have been filed. The power would be more akin to that of the first appellate court and it would be open for this court to reappraise the evidence and materials on record if not for the purpose of reconsideration of the decision of the learned first appellate court at least for the purpose of satisfying this court that the conclusions have been reached fairly and objectively. Though the powers are wide, care and caution must be taken to ensure that the findings reached by the learned first appellate court are not lightly interfered with. Interference therefore would be called for only for strong and compelling reasons. 12. Though the powers are wide, care and caution must be taken to ensure that the findings reached by the learned first appellate court are not lightly interfered with. Interference therefore would be called for only for strong and compelling reasons. 12. The case of the plaintiffs in so far as the validity of the Nadabi deed is concerned, notwithstanding the language in which the issue No. 4 has been couched, is that the defendant No. 1 was not authorised to execute the power of Nadabi by virtue of the power of attorney executed in his favour. As already stated we have looked into the power of attorney executed in favour the defendant No. 1 as well as the Nadabi deed (Exhibit-3). The power was conferred on the defendant No. 1 to look after and manage the properties of the plaintiffs for beneficial use and enjoyment and no power to relinquish any interest in the properties was intended to be conferred to the defendant No. 1. Notwithstanding the above, the defendant No. 1 in purported exercise of power conferred to him by the deeds of attorney executed the Nadabi deed. Not much persuation is required to satisfy us that the Nadabi deed was executed in breach of the power conferred and such execution must be held to the totally unauthorised. The Nadabi deed therefore would be partake, the character of an illegitimate deed which would be void and inoperative in law. In view of the aforesaid conclusion reached by us. We sustain the finding of the learned Trial Court and learned first appellate court on that count and we do not consider. It necessary to go into further question as to whether the said deed is also collusive. 13. In an earlier part of the judgment, the claims of the respective parties to the suit property have already been noticed. In so far as Items (i) to (v) of the suit property is concerned, the learned Trial Court has found the suit property identified by reference to particular dag numbers to be covered by the decree(s) claimed to have been obtained by Late Akhil Chandra Ghosh. Necessary proof of the decree(s) as well as execution thereof and the report of the commissioner appointed to carry out the necessary local investigations were taken into account by the learned Trial Court to hold the claims of the plaintiffs to be justified. Necessary proof of the decree(s) as well as execution thereof and the report of the commissioner appointed to carry out the necessary local investigations were taken into account by the learned Trial Court to hold the claims of the plaintiffs to be justified. While so holding, the learned Trial Court also took into account the fact that the counter claims made by the defendants remains unsubstantiated by any documentary evidence either to the effect that the claimed possession of the defendants were legally obtained prior to the possession of the plaintiffs by virtue of the decrees in question or to show that any valid settlement was made by Late Akhil Chandra Ghosh in their favour. The findings in so far as Items (i) to (v) of the suit property is concerned, are based on cogent and reliable evidence and in our considered view the said findings have been rightly concurred with by the learned first appellate court. 14. In so far as the Items(vi) and (vii) to the suit property is concerned, what must be noticed is the claims of the plaintiffs to the said property is on the basis of decree passed in T.S. 72/1958 obtained by Late Akhil Chandra Ghosh. The materials on record would go to show that the commissioner appointed to ascertain the said fact had submitted a report that only an area of 25 acres of land decreed in T.S. 72/1958 was found included in Plot No. 281. The plaintiffs' claim being founded on the decree passed in Title Suit No. 72/1958 and the report of the commissioner having found only an area of 25 acres to be included within Plot No. 281, we are of the considered view that the learned Trial Court rightly decreed the suit of the plaintiffs to the extent of 25 acres and the interference made by the learned first appellate court not being founded on any reasonable basis, we interfere with the order passed by the learned first appellate court and restore the order of the learned Trial Court in so far as Items(vi) and (vii) of the suit property is concerned. The argument advanced by Mr. The argument advanced by Mr. S. Deb, learned senior counsel on the basis of the evidence of late Akhil Chandra Ghosh in T.S. 72/1958, even assuming to be open to the appellants in LPA No. 14/1998, stands answered by the recitals in the Nadabi deed which would go to show that Pabiacherra Mouza was earlier known as Ratiabari Mouza. The further argument that the retained lands in Paabiacherra after finalisation of the land ceiling proceedings do not include the suit land would also not assist the appellants in LPA No. 14/1997 inasmuch as the suit land is also not included in the Schedule of the excess surrendered lands. The said facts would rather indicate that the suit land was neither the subject matter of "vesting" under Section 134 of TLR & LR Act nor related to ceiling chapter to the said Act. 15. Before parting with the record, the submissions advanced on behalf of the learned counsel for the appellants in LPA No. 14/ 1997 regarding the effect of the vesting of the estate of late Akhil Chandra Ghosh in the State Government by virtue of the provisions of TLR & LR Act has to be considered. The argument of Mr. S.Deb, learned senior counsel for the appellants in LPA No. 147 1997 have already been noted. The arguments though attractive at the first blush has to be answered in the negative in view of the provisions of Section 199(2) and (3) of the Act which in our considered view would save the decree(s) passed by the Courts of competent jurisdiction in favour of late Akhil Chandra Ghosh in so far as different Items of the suit property is concerned. The Taluki Estate of late Akhil Chandra Ghosh having admittedly been granted under an enactment mentioned in the first Schedule to the Act, the several decree(s) passed in favour of late Akhil Chandra Ghosh in the course of proceedings instituted in Courts of competent jurisdiction stands expressly saved by the provision of Section 199(2) and (3) of the Act. The decision relied upon on behalf of the appellants in the case of Haji Sk. The decision relied upon on behalf of the appellants in the case of Haji Sk. Subhan, Appellant- Vs- Madhorao, Respondent, reported in AIR 1962 SC 1230 turns on its own facts and it may be usefully noticed that no provision akin to Section 199 of the Tripura Act was brought to the notice of the Hon'ble Apex Court while interpreting the provision of Madhya Pradesh Abolition of Proprietary Rights(Estates, Mahals, Alienated Lands) Act, 1950. 16. In view of the foregoing discussions and for the reasons recorded we are left with no doubt in our minds that LPA No. 14/1997 deserves to be dismissed. It is accordingly dismissed. LPA No. 13/1997 stands allowed and the claim of the plaintiffs for declaration of their rights and interest to the extent of 25 acres of land in Items (vi) and (vii) of Schedule-A of the suit and for recovery of possession of the said land stand decreed. The parties are left to bear their own costs.