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2012 DIGILAW 661 (GAU)

Md. Sona Mian v. Kebal Kanti Nandi

2012-06-02

SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. This appeal, filed under Section 100 of the Code of Civil Procedure, 1908, challenges the legality of the judgment and decree dated 22.02.2010, passed by the learned Addl. District Judge, North Tripura, Dharmanagar, in Title Appeal No.11 of 2008, affirming the judgment and decree dated 29.11.2008 and 04.12.2008 respectively, passed by the learned Civil Judge, Senior Division, North Tripura, Dharmanagar, in Title Suit No. 14 of 1995. Before the substantial questions of law, as formulated by this Court by order dated 26.11.2010 are considered, the factual perspective is required to be briefly laid. 1.1 The respondents (hereinunder referred to as the plaintiffs) filed a suit for declaration with consequential reliefs for injunction, etc. in the Court of the learned Civil Judge, Senior Division, Court No.1 (formerly the Court of Assistant District Judge, North Tripura, Dharmanagar), being Title Suit No.14 of 1995 and re-numbered as Title Suit No.26 of 2002 (at Kailashahar). The reliefs as prayed in the suit are extracted hereunder: (i) For a declaration as to the right of the plaintiff No.1 to have the sale deed executed on 18.1.1993, presented for registration on 12.4.1993 registered in respect of the suit land described in schedule-A below from the defendants. (ii) For a mandatory injunction directing the defendants to get the aforesaid pending deed executed on 18.1.1993 registered and on their failure to do so within the time to be fixed by the learned court to get the said sale deed registered by issuing necessary consent and direction from the court through its officer. (iii) For a declaration as to the possession of the plaintiff No.1 and confirmation of his such possession over the suit land. (iv) For perpetual injunction restraining the defendants, particularly the defendant No.1 from interfering with the peaceful possession of the plaintiff No.1 in the suit land. (v) For a declaration that the sale deed described in schedule-F below is fraudulent, collusive, void ab initio and not binding upon the plaintiffs. (vi) For a declaration that the purported deed of cancellation dated 14.3.1995 as mentioned in schedule-H below is null and void and not binding upon the plaintiffs and particularly upon plaintiff No.2. (vii) For prohibitory injunction directing the defendants not to execute or get registration of any further deed/deeds in respect of the suit land. (vi) For a declaration that the purported deed of cancellation dated 14.3.1995 as mentioned in schedule-H below is null and void and not binding upon the plaintiffs and particularly upon plaintiff No.2. (vii) For prohibitory injunction directing the defendants not to execute or get registration of any further deed/deeds in respect of the suit land. (viii) For due compensation as the learned court will determine with reference to defendants and particularly the defendants No. 1, 2 and 3 and for further compensation for illegal blockade of compensation money. (ix) Granting all other reliefs deemed fit and proper. 1.2 The appellant was the defendant No.1 in the suit and other defendants have not been impleaded in the appeal even though they are necessary parties for determination of the appeal. For convenience hereinafter the appellant would be referred to as the defendant in the appeal. 1.3 The land as described in the Schedule-A of the plaint is the suit land and the land described in Schedule-B to Schedule-E of the plaint are sub-judice in different suits as mentioned alongside those Schedules. The plots, those are appearing in the A-Schedule land, can be figured out in the B-schedule also. However, the suit is confined to only A-Schedule land. The defendant Nos.2 to 8 in the suit were the owners and possessors of the A-Schedule land in unequal shares. For their necessity they sold out the said A-Schedule land to the respondent No.1(plaintiff No.1 in the suit) by executing a deed of sale dated 18.01.1993 and presented the said deed for registration before the Sub-Registrar, Dharmanagar on 12.04.1993 but the defendant in the appeal filed objection before the said Sub-Registrar for not registering the said deed and sought for temporary injunction and obtained the same in the proceeding related to Title Suit No.03 of 1993, as instituted by the defendant in appeal in the Court of Civil Judge, Senior Division, North Tripura, Dharmanagar(formerly the Court of Assistant District Judge, Dharmanagar, North Tripura). Even the said temporary injunction was made absolute by the Court, and as such, the registration of the said sale deed dated 18.01.1993 has not been completed as yet. 1.4 The defendant Nos.2 to 7, thereafter, appointed the plaintiff No.2 in the suit (the respondent No.2 herein) as their constituted Power of Attorney authorizing him to register the sale deed, etc. 1.4 The defendant Nos.2 to 7, thereafter, appointed the plaintiff No.2 in the suit (the respondent No.2 herein) as their constituted Power of Attorney authorizing him to register the sale deed, etc. and to manage the properties owned by them and to do other acts and deeds on their behalf in relation to the suit property. The plaintiff No.1 and the defendant Nos.2 to 7, through their constituted Attorney (plaintiff No.2) filed Civil Misc. Appeal, bearing No.04 of 1993 in the Court of the District Judge, North Tripura, Kailashahar against the order of temporary injunction as passed in Civil Misc. case No.01 of 1993, arising out of Title Suit No.03 of 1993. The defendant No.4 made an agreement with plaintiff No.2 for sale of the land described in Schedule-C of the plaint and delivered the possession of the said land to the plaintiff No.2 and the defendant in the appeal made an attempt to dispossess the plaintiff No.2 illegally from the said land described in Schedule-C of the plaint and for that the plaintiff No.2 filed Title Suit No.24 of 1992 in the Court of the learned Assistant District Judge, now in the Court of the Civil Judge, Senior Division, North Tripura, Kailashahar, and obtained an order of ad interim injunction for which the plaintiff No.2 filed Civil Misc. Appeal No.02 in the Court of learned District Judge, North Tripura, Kailashahar in the said Title Suit No.03 of 1993, involving the same land of the Title Suit No.24 of 1992 as filed by the plaintiff No.2. During the pendency of the suits and appeals as mentioned above, the defendant Nos.2 and 3 made conspiracy and collusion with defendant in appeal to defraud and to injure the plaintiff and in furtherance to that those defendant Nos.2 and 3 illegally cancelled the Power of Attorney described in Schedule-G of the plaint to the extent of their part and after cancellation of the Power of Attorney, executed and registered illegally the sale deed in relation to the land as described in Schedule-E of the plaint in favour of the defendant No.1 in appeal. The said sale deed has been described in Schedule-E of the plaint. By the suit, cancellation of the said sale deed has also been prayed, as is evident from the extracted reliefs. The said sale deed has been described in Schedule-E of the plaint. By the suit, cancellation of the said sale deed has also been prayed, as is evident from the extracted reliefs. 1.5 The defendant Nos.2 and 3 by executing and registering the sale deed as described in Schedule-F of the plaint stated that they did not get the consideration money of the land while executing the Kabala deed dated 18.03.1993 in favour of the plaintiff No.1, respondent No.1 in the appeal in respect of the A-Schedule land as described in the plaint. It is pleaded in the plaint that from the sale deed dated 18.01.1993 itself it would be evident that after receipt of the consideration money they executed the said deed of sale. Moreover, the defendant Nos.2 and 3, while executing the deed of Power of Attorney as described in Schedule-G of the plaint, admitted that they had received the consideration money of the suit land. Apart that, the defendant Nos.2, 3, 4, 6 and 7 along with plaintiff No.1 had filed Title Suit No.04 of 1993 in the Court of the Munsiff (now Civil Judge, Jr. Division), Dharmanagar, North Tripura against the present defendant in the appeal and his son, Md. Manu Miah as proforma-defendant, wherein they admitted and asserted that they had received the consideration money of the land involved in that T.S. 04 of 1993 as described in Schedule-D of the plaint, which comprised of the major portion of A-Schedule land i.e. the suit land. So, non-receipt of consideration money as stated by the defendant Nos. 2 and 3 are not correct and it is a misstatement on their part and such act is a clear fraud and the same was done in collusion with defendant in the appeal in order to defraud and injure the plaintiff No.1. The plaintiff No.2, who is the Attorney of the defendant Nos.2 to 8, had spent some money to protect the property of the plaintiff No.1 and the defendant Nos.2 to 8 with their consent. The defendant Nos.2 and 3 illegally executed the Power of Attorney as described in Schedule-G of the plaint to the extent of their part and as such, cancellation of deeds of Power of Attorney to the extent of the part of them has got no legal value and no legal consequence and as such, the same is not binding upon the plaintiff No.2. The plaintiff No.2 still remains the appointed Attorney of the defendant Nos.2 and 3. The plaintiffs are the son and father and thus live in the same mess. The plaintiff No.1 however has purchased the suit land from his own money and the plaintiff No.2 has got no right, title and interest in the suit property. The suit properties are still in the possession of the plaintiff No.1. He has been possessing the suit land by growing paddy in a portion of paddy growing land and in a portion of remaining land he has got the remains of a brick kiln which was being managed and looked after by him and other portion of the suit land is to be possessed by growing seasonable crops, etc. 1.6 The defendant in the appeal was once the Manager of the defendant Nos.2 to 8, while they with some other persons were running a brick kiln within a portion of the suit land, but when the brick manufacturing business was wound up, the defendant in the appeal set up a false claim of 'Bargadarship' in some land of the defendant Nos.2 to 8, which claim was subsequently turned down by the Settlement authority. The defendant in the appeal was never in possession of any portion of the suit land as 'Bargadar' or otherwise, and as such, his claim of possession, as claimed by him, is false and, moreover, he was not the owner of the suit land. The defendant in the appeal has not accrued any right, title and interest in the suit land on the strength of the sale deed as described in the Schedule-F of the plaint. The defendant in the appeal is in the full knowledge of the sale of the land effected by the defendant Nos.2 to 8 in favour of the plaintiff No.1, which is evident from his alleged purchase deed as described in Schedule-F of the plaint. 1.7 The sale and purchase of the suit land between the defendants Nos.2 to 8 and the plaintiff No.1 by the deed of Sale executed on 18.01.1993 still remains good and valid though not registered because of the temporary injunction issued by the learned Court. 1.7 The sale and purchase of the suit land between the defendants Nos.2 to 8 and the plaintiff No.1 by the deed of Sale executed on 18.01.1993 still remains good and valid though not registered because of the temporary injunction issued by the learned Court. The defendant Nos.2 to 8 are legally bound to give consent to the registration of the said deed executed on 18.01.1993 and the defendant in the appeal has got no right to resist the registration of the said deed and the defendant Nos.2 and 3 cannot resile and withhold consent from the previous agreement for sale of the suit land by the defendant Nos.2 to 8 to the plaintiff No.1 and the other defendants also cannot resile, withhold or connive with the defendant Nos.2 and 3. The defendant No.4, being the mother of the defendant Nos.2, 3, 5 and 6 and elder brother's wife of defendant Nos.7 and 8, by her letter dated 25.03.1995, addressed to the plaintiff No.2, admitted that the defendant Nos.2 and 3 acted ill, and she would manage and settle everything by April, 1995 in respect of registration of the sale deed executed on 18.01.1993 in favour of the plaintiff No.1. However, the defendant No.4 did not keep her words for which the plaintiffs had been compelled to bring the suit against the defendants. The illegal acts and deeds of the defendant in the appeal and the defendant Nos.2 and 3 and other defendants put the plaintiffs to mental and physical sufferings with loss of health and unnecessary monetary strain for which the plaintiffs claimed compensation to the extent of Rs.10,000/-. Further, a declaration was sought to the effect that the purported sale deed as described in Schedule-F of the plaint in relation to the suit land is illegal, void, ab initio being fraudulent and collusive. The deed canceling the power of attorney being illegal and void ab initio, has no binding effects upon the plaintiffs as per law. The purported sale deed as described in Schedule-F of the plaint is hit by the doctrine of Lis Pendens as provided in Section 52A of the Transfer of Properties Act. The deed canceling the power of attorney being illegal and void ab initio, has no binding effects upon the plaintiffs as per law. The purported sale deed as described in Schedule-F of the plaint is hit by the doctrine of Lis Pendens as provided in Section 52A of the Transfer of Properties Act. The plaintiff No.1 is still in possession of the suit land and the defendant in the appeal in collusion with other defendants is in a bid to dispossess the plaintiff No.1 forcibly from the suit land on the strength of the said purported sale deed as described in Schedule-F of the plaint. Moreover, the defendant in the appeal has circulated such intention in the locality since 07.05.1995. If the defendant in the appeal forcibly dispossessed the plaintiff No.1 from the suit land, the plaintiffs shall suffer irreparable loss, which will not be compensated in terms of money. The plaintiff No.1 has got the balance of convenience in his favour, and accordingly, the terms as referred above, have been formulated. 1.8 In the suit, the defendant Nos.1, 2 and 3 have submitted a joint written statement on 24.07.1996 and the defendant No.5 has filed a written statement on 11.10.1996. The legal heirs, namely, Smt. Shyamali Paul Majumder alias Swapna Paul Majumder and Sri Souvik Paul Majumder alias Barun Paul Majumder and Asit Paul Majumder have filed a joint written statement on 04.05.2000 and the said legal heirs are figured as the defendant Nos.8 (a) and 8(b) in the suit. Other defendants have not submitted the written statement and, as such, the suit was heard ex parte against them. Defendants, except the defendant in the appeal, who have submitted written statement, have not contested the suit and the suit against those defendants was also heard ex parte. That is, perhaps, the reason why the defendant in the appeal has not been made them party. 1.9 The defendant in the appeal has contested the suit denying the allegation of the plaintiffs. He raised objection on the question of maintainability of the suit. That is, perhaps, the reason why the defendant in the appeal has not been made them party. 1.9 The defendant in the appeal has contested the suit denying the allegation of the plaintiffs. He raised objection on the question of maintainability of the suit. He stated in the written statement that he was in possession of the suit land and the brick kiln, which was the part of the suit land under the name and style "Tripura Brick Kiln Agency', under a partnership firm in the year 1979 and the said brick kiln agency was wound up long before, and as such, for a long period, there was no brick kiln industry in the suit land. In the suit land he was a 'Bargadar' under the rest defendants in relation to 'Nal' class of land and 'Kurfadar' in relation to 'Tilla' class of land. He has also maintained a fishery under the rest defendants and constructed a homestead in a 'Tilla' class of land, which falls within the suit land. During the survey operation, the suit land was recorded in his name as 'Bargadar' under the rest defendants but during attestation of the survey operation, on the basis of a petition filed by the defendant No.2 in relation to the suit land, a dispute case, being No.42 under Mouja Hurua, was started by Kanungo of Dighalbagh Halka Camp, and after hearing, by an order dated 15.04.1992 the name of the defendant in the appeal as 'Bargadar' was cancelled. Thereafter, he filed an appeal on 15.05.1992 in the Court of the Survey and Settlement Officer, Kumarghat and the appeal is still pending and the defendant in the appeal has taken necessary step for recording the suit land in his name as 'Bargadar' and 'Kurfadar'. In relation to the suit land, numbers of suits and miscellaneous proceedings were instituted in different Courts by the parties. The defendant Nos.2 to 8 had failed to evict the defendant in the appeal and, so, on 29.07.1992 they had executed and registered an agreement of sale, i.e. 'Bainapatra' in favour of the plaintiff No.1 in relation to a land measuring to 6.46 acres as described in the A-Schedule. The fact of delivery of possession as mentioned in the said 'Bainapatra' is against the truth according to the defendant in the appeal. The fact of delivery of possession as mentioned in the said 'Bainapatra' is against the truth according to the defendant in the appeal. The defendant Nos.2 to 8 had executed a deed of sale on 18.01.1993 in respect of the suit land in favour of the plaintiff No.1 and presented the same in the office of the Sub-Registrar, Dharmanagar for registration but the Sub-Registry has withheld the registration of the said sale deed on the basis of an objection petition filed by the defendant in the appeal and in compliance of the order of temporary injunction, as passed in Misc. application No.01 of 1993, arising out of Title Suit No.03 of 1993, by the Court of the Assistant District Judge, North Tripura, Dharmanagar, at present the Civil Judge, Senior Division, North Tripura, Dharmanagar. The defendant in appeal pleaded that the plaintiffs are not entitled to get declaration and injunction in respect of the suit land. 1.10 The following issues were framed by the learned Civil Judge:- (i) Is the suit maintainable? (ii) Is there any cause of action for the suit? (iii) Is the Sale Deed bearing No.1-1028, dated 15.3.95 executed by Sri Chandra Sekhar Pal Majumder and Sri Ajoy Pal Majumder in favour of defendant No.1, namely Md. Sona Miah valid and binding upon the plaintiffs? (iv) Is the cancellation of Power of Attorney Deed bearing No.IV-169, dated 14.3.95 executed by Sri Chandra Sekhar Pal Majumder and Sri Ajoy Pal Majumder valid? (v) Whether plaintiffs have got possession over the suit land? (vi) Are the plaintiffs entitled to get the decree as prayed for? (vii) To what other relief/reliefs the parties are entitled? 1.11 Though the plaintiff No.1 was not examined but the plaintiff No.2 was examined as PW.2 for himself and for the plaintiff No.1, being his constituted Attorney, along with other four witnesses. As many as 33 (thirty three) documents, either singularly or in series, were admitted in the evidence by the plaintiffs, whereas the defendant in the appeal had examined himself along with two other witnesses but did not produce any piece of documentary evidence in support of his claim. 2. As many as 33 (thirty three) documents, either singularly or in series, were admitted in the evidence by the plaintiffs, whereas the defendant in the appeal had examined himself along with two other witnesses but did not produce any piece of documentary evidence in support of his claim. 2. After appreciation of the evidence, learned trial Court, except the issue No.3, had decided all the issues in favour of the plaintiffs and decreed as under: It is declared that plaintiff No.1 namely Sri Kebal Kanti Nandi is in possession of the suit land and his possession therein is confirmed and that the Sale Deed bearing No.1-1028 of 1995 which was executed and registered on 15.3.1995 in the Sub-Registry Office, Dharmanagar in relation to the land shown in the schedule E of the plaint under Mouja and Tehasil Hurua, purportedly executed by Sri Chandra Sekhar Pal Majumder(now deceased) and Sri Ajoy Pal Majumder, S/O. Lt. Chitta Ranjan Pal Majumder of Post Office Road, Dharmanagar Town, P.S. Dharmanagar in favour of Md. Sona Miah, S/O. Lt. Konai Miah of South Hurua, P.S. Dharmanagar, North Tripura is fraudulent, collusive, void ab-initio and not binding upon the plaintiffs and that the purported Deed of Cancellation of Power of Attorney bearing No. iv-169, dated 14.3.1995, executed by Sri Chandra Sekhar Pal Majumder @ Bachhu (defendant No.2), now deceased and Sri Ajoy Pal Majumder(defendant No.3) registered on the same date at Dharmanagar Sub-Registry Office, canceling the Deed of Power of Attorney bearing No.iv-68 dated 30-4-1993 of Dharmanagar Sub-Registry office appointing Sri Kshitish Ch. Nandi (plaintiff No.2) as their attorney, is null and void and not binding upon the plaintiffs and particularly upon the plaintiff No.2. 3. Before passing the decree, the submission of the defendants as regard to one objection has been recorded as under: On the contrary, Ld. Defence Counsel appearing for the defendant No.1 submitted that plaintiff No.1, in whose favour the sale deed was executed, did not appear in the witness box to face cross-examination, but his father who is plaintiff No.2 has appeared and deposed in connection with this suit as P.W.1. So, the evidence of P.W.1 has no value in the eye of law. 4. So, the evidence of P.W.1 has no value in the eye of law. 4. Being aggrieved by the said judgment and decree as passed by the learned Civil Judge, Senior Division, North Tripura, Dharmanagar, dated 29.11.2008 and 04.12.2008, the defendant in appeal filed an appeal under Section 96 of CPC in the Court of the learned Addl. District Judge, Dharmanagar, North Tripura, which was registered as Title Appeal No.11 of 2008. Learned Addl. District Judge, after an elaborate discussions of all the issues on the basis of the evidence as laid by the parties, affirmed the judgment of the learned Civil Judge by the judgment and decree dated 22.02.2010, holding in categorical terms that "In view of the findings and decisions arrived at the preceding paragraphs of the judgment I do hereby dismiss the memo of appeal of the appellant as the same is devoid of any merit. 5. By this judgment of affirmation, all the factual aspects related to the suit have come to its finality and there is no allegation either against the judgment as returned by the First Appellate Court that it suffers from any perversity or non-consideration of the relevant fact or for non-consideration of documents. Be that as it may, the defendant in the appeal filed this appeal challenging the legality of the judgment and decree of the First Appellate Court as stated. 6. This Court, while admitting this appeal, formulated the following substantial questions of law for the purpose of considering this second appeal: (I) Whether the suit of the plaintiff is barred under the proviso to Section 34 of the S.R. Act for not praying for recovery of possession when the appellant are in possession of the suit land? (II) Whether the learned court below erred in law in accepting the deposition of the PW 1 who was the power of attorney holder of the plaintiff as the statement of the plaintiff in his failure to appear in the witness box as a witness? 7. Heard Mr. A. Dasgupta, learned counsel appearing for the appellant, who submits that the suit as filed by the plaintiff is barred under the proviso to Section 34 of the Specific Relief Act, 1963 for not praying for recovery of possession when the appellant are in possession of the suit land. This submission is fraught with incorrect appreciation of the pleaded fact by the plaintiffs. This submission is fraught with incorrect appreciation of the pleaded fact by the plaintiffs. The plaintiffs prayed in the suit for confirmation of their possessions and permanent injunction against the defendants, particularly, against the defendant in the appeal from disturbing their possession. Therefore, there was no question of praying for recovery of possession. Moreover, this submission has no nexus with what the proviso to Section 34 of the Specific Relief Act has embodied. Profitably, the Section 34 with the proviso is reproduced hereunder: 34. Discretion of court as to declaration of status or right. - Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.-A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee. 8. In support of his contention, Mr. Dasgupta, learned counsel appearing for the appellant relied a decision as rendered in Ram Saran & another vs. Smt. Ganga Devi as reported in AIR 1972 SC 2685 , where the Apex Court dismissed the suit on the ground that the plaintiffs have not sought possession of those properties. In that case, the plaintiffs merely claimed a declaration that they are the owners of the suit properties. Hence, the suit was held, not maintainable. 9. This Court really fails to understand how this decision could come to aid or support the contention as raised by Mr. Dasgupta, learned counsel appearing for the appellant. In that case, the suit was filed simply for a declaration without seeking further relief(s) as consequence of the declaration. Such omission is prohibited by the proviso to Section 34 of the Specific Relief Act. As such, there is no substance in this substantial question of law. 10. In the midst of the argument when it is popped up that what constituted a substantial question of law, Mr. Such omission is prohibited by the proviso to Section 34 of the Specific Relief Act. As such, there is no substance in this substantial question of law. 10. In the midst of the argument when it is popped up that what constituted a substantial question of law, Mr. D.K. Biswas, learned counsel appearing for the plaintiffs has submitted that in catena of decisions the Apex Court has considered a workable definition of "substantial question of law" as appearing in Section 100 of the CPC. Learned counsel referred the decision of Chunilal V. Mehta & Sons Ltd. vs. Century Spinning and Manufacturing Co. Ltd. as reported in AIR 1962 SC 1314 , where the Apex Court has held thus: What is a substantial question of law as between the parties would certainly depend upon the facts and circumstances of every case. Thus, for instance, if a question of law had been settled by the highest court of the country the question of law however important or difficult it may have been regarded in the past and however much it may affect any of the parties would cease to be a substantial question of law. Nor again, would a question of law which is palpably absurd be a substantial question of law as between the parties. The Bombay High Court, however, in their earlier decision already adverted to have not properly appreciated the test laid down by the Privy Council for ascertaining what is a substantial question of law. Apparently the judgment of the Privy Council was brought to their notice for, though they do not make a direct reference to it, they have observed as follows:- The only guidance that we have had from the Privy Council is that substantial question is not necessarily a question which is of public importance. It must be a substantial question of law as between the parties in the case involved. But here again it must not be forgotten that what is contemplated is not a question of law alone; it must be a substantial question. One can define it negatively. For instance, if there is a well established principle of law and that principle is applied to a given set of facts, that would certainly not be a substantial question of law. One can define it negatively. For instance, if there is a well established principle of law and that principle is applied to a given set of facts, that would certainly not be a substantial question of law. Where the question of law is not well settled or where there is some doubt as to the principle of law involved, it certainly would raise a substantial question of law which would require a final adjudication by the highest Court. Chunilal V. Mehta (supra) has laid the guiding principle in this regard. 11. In Santosh Hazari vs. Purushottam Tiwari as reported in 2001 AIR SCW 723, the Apex Court has again considered the phrase "substantial question of law" as under:- 12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying 'question of law', means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of 'substantial question of law' by suffixing the words 'of general importance' as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta AIR 1928 PC 172, the phrase 'substantial question of law' as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. The Century Spinning and Manufacturing Co., Ltd. 1962 Supp(3) SCR 549 AIR 1962 SC 1314 , the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju ILR (1952) Mad 264 : AIR 1951 Mad 969 (AT P.1318; PARA 5 OF air):- When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law. And laid down the following test as proper test, for determining whether a question of law raised in the case is substantial (at p. 1318, para 6 of AIR): The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. 13. In Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate v. Rama Krishna Narain & other, AIR 1953 SC 521 , also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to certificate under (the then) Section 110 of the Code. 14. 13. In Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate v. Rama Krishna Narain & other, AIR 1953 SC 521 , also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to certificate under (the then) Section 110 of the Code. 14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial', a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. 12. Mr. D.K. Biswas, learned counsel appearing for the respondents further referred the decision of Hero Vinoth vs. Seshammal as reported in (2006)5 SCC 545 , where the Apex Court considered that issue as under: 18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 CPC. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. 1962 Supp(3) SCR 549 held that: The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. 13. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. 13. In a decision as rendered by the Supreme Court as referred in State Bank of India & other vs. S.N. Goyal as reported in 2008 AIR SCW 4355, the said phrase was again reconsidered as under: 9. Before examining the merits of the matter, we may briefly refer to the scope of second appeals as also the procedure for entertaining them, as laid down in Section 100 of the Code of Civil Procedure. What is a substantial question of law? 9.1 Second appeals would lie in cases which involve substantial questions of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of Section 100, CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this Court (or by the concerned High Court so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. It is said that a substantial question of law arises when a question of law, which is not finally settled by this Court (or by the concerned High Court so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the concerned High Court), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the concerned High Court) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this Court (or the concerned High Court) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two view points, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a strait-jacket definition as to when a substantial question of law arises in a case. Be that as it may. 14. Even though the Apex Court held that it will depend on the facts and circumstances of each case whether a substantial question of law is a substantial one involved in the case or not, the paramount overall consideration being to strike a judicious balance between the indispensable obligation to do justice and the impelling necessity of avoiding prolongation in life of any lis, but they have not left the phrase completely unanswered and for that purpose the golden rule as laid by Chunilal V. Mehta(supra) has been reverberate on innumerable occasions. Chunilal V. Mehta (supra) has enunciated the phrase as follows: The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. 15. According to Mr. D.K. Biswas, learned counsel appearing for the plaintiffs (respondents herein), both the substantial questions of law do not bear any traits of the substantial questions of law in terms of those decisions of the Apex Court, and as such, this appeal must fail. 16. Mr. A. Dasgupta, learned counsel appearing for the appellant, however, strenuously argued that since the plaintiff No.1 did not come to the dock as the witness to support his case, the suit should have been dismissed as not maintainable in view of the law laid down by the Apex Court in Janki Vashdeo Bhojwani & another vs. Indusind Bank Ltd. & other as reported in AIR 2005 SC 439 , where the Apex Court held as under: 12. In the context of the directions given by this Court, shifting the burden of proving on the appellants that they have a share in the property, it was obligatory on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. 13. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. 14. Having regard to the directions in the order of remand by which this Court placed the burden of proving on the appellants that they have a share in the property, it was obligatory on the part of the appellants to have entered the box and discharged the burden. Instead, they allowed Mr. Bhojwani to represent them and the Tribunal erred in allowing the power of attorney holder to enter the box and depose instead of the appellants. Thus, the appellants have failed to establish that they have any independent source of income and they had contributed for the purchase of the property from their own independent income. We accordingly hold that the Tribunal has erred in holding that they have a share and are co-owners of the property in question. The finding recorded by the Tribunal in this respect is set aside. 15. We accordingly hold that the Tribunal has erred in holding that they have a share and are co-owners of the property in question. The finding recorded by the Tribunal in this respect is set aside. 15. Apart from what has been stated, this Court in the case of Vidhyadhar v. Manikrao and another, AIR 1999 SC 1441 observed at page 583 SCC that "where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct 16. In civil dispute the conduct of the parties is material. The appellants have not approached the Court with clean hands. From the conduct of the parties it is apparent that it was a ploy to salvage the property from sale in the execution of Decree. 17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan, 1986(2) WLL 713 it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. 18. The aforesaid judgment was quoted with the approval in the case of Ram Prasad v. Hari Narain and other AIR 1998 Raj 185 . It was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC. 19. In the case of Dr. Pradeep Mohanbay v. Minguel Carlos Dias reported in 2000 102 (1) B.L.R.908, the Goa Bench of the Bombay High Court held that a power of attorney can file a complaint under Section 138 but cannot depose on behalf of the complainant. He can only appear as a witness. 20. However, in the case of Humberto Luis and another v. Floriano Armando Luis and another reported in 2000(2) Bom CR 754 on which the reliance has been placed by the Tribunal in the present case, the High Court took a dissenting view and held that the provisions contained in order III Rule 2 of CPC cannot be construed to disentitle the power of attorney holder to depose on behalf of his principal. The High Court further held that the word act appearing in order III Rule 2 of CPC takes within its sweep depose. We are unable to agree with this view taken by the Bombay High Court in Floriano Armando (supra). 21. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (supra) followed and reiterated in the case of Ram Prasad (supra) is the correct view. The view taken in the case of Floriano Armando Luis (supra) cannot be said to have laid down a correct law and is accordingly overruled. 22. In the view that we have taken we hold that the appellants have failed to discharge the burden that they have contributed towards the purchase of property at 38, Koregaon Park, Pune from any independent source of income and failed to prove that they were co-owners of the property at 38, Koregaon Park, Pune. This being the core question, on this score alone, the appeal is liable to be dismissed. 17. Mr. This being the core question, on this score alone, the appeal is liable to be dismissed. 17. Mr. Dasgupta, learned counsel appearing for the appellant, perhaps, ventured to make out of it that the learned trial Court did not follow the decision of the Apex Court and as such, for not observing the settled position of the law, the substantial question of law has thus been constituted. It is admitted fact that the plaintiff No.1 did not come to the Court as the witness to support his case but the plaintiff No.2, who is the father as well as the Power of Attorney, has come to prove the material facts for determination of the issues as formulated by the trial court. 18. Let it be now examined whether the ratio as laid by the Supreme Court in Janki Vashdeo Bhojwani(supra) is an inflexible blanket rule that whenever one plaintiff out the several plaintiffs or the sole plaintiff does not come to the Court, the suit should imminently fall through or otherwise. The law what has been precisely decided in the Janki Vashdeo Bhojwani (supra) is that the attorney may depose for the principal in respect of such act or fact emanating from documentary evidence or from universally known act or fact or from the act or fact within his personal knowledge, but he cannot depose for the principal for the acts done by the principal not reflected in the records or not universally or personally known to the attorney. In other words, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is required to be cross-examined. Janki Vashdeo Bhojwani (supra) found that the attorney deposed about the fact within the personal knowledge of the plaintiff, which was not supposed to be within the attorney's knowledge and the plaintiff, for that matter the principal, was not available for cross-examination. In view of that, the suit was dismissed. But in the present case the appellant had utterly failed to show that what part of the factual materials was within the personal knowledge of the plaintiff No.1 but was deposed by the attorney and the plaintiff No.2 and as such, the law as laid down in Janki Vashdeo Bhojwani (supra) cannot be pressed in the present case. But in the present case the appellant had utterly failed to show that what part of the factual materials was within the personal knowledge of the plaintiff No.1 but was deposed by the attorney and the plaintiff No.2 and as such, the law as laid down in Janki Vashdeo Bhojwani (supra) cannot be pressed in the present case. The Court categorically held that they are living in the same mess as such knowledge in respect of possession is not exclusively in the personal knowledge of the PW.1. Apart that, the fact related for determination of the issues are mostly based on the documentary evidence, which were admitted without any protest by the defendant in the appeal. As such, though Mr. Dasgupta, learned counsel appearing for the appellant has ventured to show that for non-observance of the law as enunciated in Janki Vashdeo Bhojwani (supra) the suit must fail but his sincere attempts are bound to cave in in the fact situation of this case. As such, this Court is left with no alternative but to hold that the substantial question No.2 is devoid of substance as well. 19. Situated thus, this appeal has to be dismissed, and accordingly, the same is dismissed. L.C. records, if received, be returned forthwith. Appeal dismissed.