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2016 DIGILAW 278 (ORI)

Banalata Chand v. Pranaya Kumar Das

2016-04-08

D.DASH

body2016
JUDGMENT : 1. The appellants in this appeal assail the judgment and decree passed by the learned Addl. District Judge-Cum-Addl. Special Judge, (Vig), Bhubaneswar in RFA No. 32 of 2008. 2. The respondent no.1 as the plaintiff had filed the suit i.e. C.S. No.105/446 of 2005-2004 against the appellants arraigning them as the defendant nos. 1 to 5 and seeking the relief of declaration of the deed of cancellation dated 28.7.2004 executed by appellant nos. 1 to 4 (defendant nos. 1 to 4) cancelling the power of attorney dated 14.11.2003 executed in favour of the plaintiff as null and void with the consequential declaration that the power of attorney executed by the appellant nos. 1 to 4 (defendant nos. 1 to 4) in favour of appellant no. 5 also as null and void and for mandatory injunction to settle the matter in accordance with the agreement between the respondent no. 1 one hand and the appellant nos. 1 to 4 on the other as also for permanent injunction against them restraining them from causing any charge or creating any 3rd party interest till such settlement in respect of the suit land. The suit having come to be heard and decided by the learned Addl. Civil Judge (Sr.Divn.), 1st court Bhubaneswar, it was dismissed. So the unsuccessful plaintiff as the appellant carried an appeal under Section 96 of the Code of Civil Procedure, the appeal has been allowed by setting aside the judgment and decree passed by the trial court. In view of that the suit stands decreed although the lower appellate court’s order is totally silent on those scores touching the prayers and the reliefs claimed which is not in conformity with rather in derogation of the provision of Order 41 Rule 31(d) and Order 41 Rule 35(2) of the Code which mandate the first appellate court to state the relief to which the appellant is entitled and for clear specification of the reliefs granted. Therefore, the unsuccessful defendants are now before this Court as appellant in an appeal under Section 100 of the Code. It is pertinent to mention here that the appellant no.1 (defendant no.1) having died during pendency of the appeal, her name has been expunged as dead, since the other defendants 2 to 4 being her legal representatives are already on record. 3. It is pertinent to mention here that the appellant no.1 (defendant no.1) having died during pendency of the appeal, her name has been expunged as dead, since the other defendants 2 to 4 being her legal representatives are already on record. 3. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the courts below. 4. The plaintiff’s case is that one Surendra Kumar Chand who happens to be the husband of defendant no. 1 and father of defendant nos.2 to 4 was the lessee in respect of the suit land. The lease was given by the Govt. in the G.A. Department to him in the year 1988. Surendera having died, defendant nos. 1 to 4 as his legal heirs and successors succeeded to the said lease hold interest that Surendra was having over the suit land. It is stated that those defendants induced the plaintiff to purchase the suit land by giving out that the land is having no encumbrance. The plaintiff expressing his interestedness to purchase the suit land requested those defendants to convert the lease hold land to free hold as per the Govt. Scheme in force. However, since the defendants were in need of money on receipt of sum of Rs. 1,50,000/-, they executed an agreement for sale of the suit land in favour of the plaintiff on 14.11.2003. Then as they asked for more money on that very day, it came as a surprise to the plaintiff. So the plaintiff then wanted that the agreement be cancelled and money be returned. The defendant nos. 1 to 4 however did not agree to revoke the agreement and rather said that let the plaintiff be their agent being appointed by execution of a deed of power of attorney to sale the land to any of relation or outsider and therefore, he should pay a sum of Rs. 3,00,000/- more within six months and take further steps to get it free-hold. Accordingly, the defendant nos. 1 to 4 executed a deed of power of attorney in favour of the plaintiff on that very day i.e. 14.11.2003. The plaintiff then deposited necessary fee on 8.1.2004 for conversion of lease hold land to free hold. During this period, the plaintiff came to learn that defendant nos. Accordingly, the defendant nos. 1 to 4 executed a deed of power of attorney in favour of the plaintiff on that very day i.e. 14.11.2003. The plaintiff then deposited necessary fee on 8.1.2004 for conversion of lease hold land to free hold. During this period, the plaintiff came to learn that defendant nos. 1 to 4 having not constructed any house over the leased land as so required under the terms and condition of the lease, eviction proceeding had already been initiated. So the plaintiff spent around Rs.38,000/- to regularize the matter and applied for mutation which was finally allowed in favour of defendant nos. 1 to 4. The plaintiff also claimed to have paid the rent which the defendants had defaulted in payment for last 10 years. The defendant no.1 to 4 then also went on demanding more money towards the balance consideration. The plaintiff felt that he could not possibly pay such huge money as per the demand. So the plaintiff suggested the defendant nos. 1 to 4 for sale of the suit land to third party when the defendants told that they were concerned with money and not as to who would be the purchaser. Therefore, the plaintiff with the consent of defendant nos. 1 to 4 entered into an agreement for sale on 24.3.2004 receiving a sum of Rs. 3,00,000/- from defendant no. 7 and handed over the entire money to defendant nos. 1 to 4. Though defendant nos. 1 to 4 received the entire amount of Rs.3,00,000/- yet they refused to sign on the plea that the plaintiff being duly authorized by them to sign on the document there remains no further necessity for that. After execution of the agreement with defendant no. 7 the plaintiff learnt about running of a Civil Suit bearing No. 23 of 2004 filed at the instance of defendant no. 6 against the defendant nos. 1 to 4 for specific performance of contract alleging that Surendra, the original lessee had executed an agreement for sale in his favour. In the said suit the plaintiff was also made a party. Taking note of such conduct of defendant nos. 1 to 4, the plaintiff tried to settle the matter. But on 28.7.2004 he again learnt that defendant nos. 1 to 4 are trying to involve another party to complicate the matter and increase the arena of the litigation and complicate it. Taking note of such conduct of defendant nos. 1 to 4, the plaintiff tried to settle the matter. But on 28.7.2004 he again learnt that defendant nos. 1 to 4 are trying to involve another party to complicate the matter and increase the arena of the litigation and complicate it. So the plaintiff filed an objection before the District Sub-Registrar and thereafter on 30.7.2004, he came to learn that the power of attorney dated 14.11.2003 having been executed in his favour by defendant nos. 1 to 4, they had executed another power of attorney in favour of defendant no.5. In that respect, no notice was issued to plaintiff by the defendant nos. 1 to 4 that his power of attorney has since been cancelled by them and that they had executed another power of attorney in favour of defendant no. 5. It was without any notice to the plaintiff and before revoking the power of attorney which was standing in the name of the plaintiff. It is stated that the defendant no.5 was well aware of the said deed of power of attorney as well as prior agreement for sale in favour of the plaintiff and knowingly he entered into the litigation and got another power of attorney executed in his name which according to the plaintiff is nonest in the eye of law. Thus the suit has been filed. 5. The defendant nos. 1 to 4 came forward to contest the suit by filing the written statement. Besides raising the question of maintainability of the suit being without any cause of action as also the lack of locus standi of the plaintiff to file the suit, they also contested the suit on other grounds on merit. They admitted to have executed of power of attorney on 14.11.03 in favour of the plaintiff as also deed of agreement for sale. They also admit to have executed another deed of power of attorney dated 28.7.2004 in favour of defendant no. 5 on 28.7.2004. It is stated that the plaintiff was duly intimated about such cancellation of this power of attorney. It is further stated that the plaintiff was made aware of that revocation on 29.7.2004 and then he avoided to receive the letter. Defendant nos. 1 to 4 further state that Surendera had never entered into any agreement with defendant no. It is stated that the plaintiff was duly intimated about such cancellation of this power of attorney. It is further stated that the plaintiff was made aware of that revocation on 29.7.2004 and then he avoided to receive the letter. Defendant nos. 1 to 4 further state that Surendera had never entered into any agreement with defendant no. 6 for sale of the suit land and the suit that had been filed numbered C.S. No. 23 of 2004 was based on a false claim in that regard. The above defendants have further asserted that the plaintiff having failed to perform his duty and act in consonance with the deed of power of attorney, the same was cancelled. 6. Defendant no. 6 appearing in the suit claimed that he had an agreement for sale with the father of the defendant nos. 1 to 4 i.e. Surendra and had paid him sum of Rs. 10,000/- to get the lease deed registered and later on a sum of Rs.25,000/-. Alas in December, 1988 Surendra expressed that he was not in a position to refund the money and therefore proposed to sale the suit land to the father of defendant no.6 for Rs.31,000/-. So an agreement for sale was executed and then the amount of Rs. 12,500/- already paid was treated and stated as the advance consideration with the stipulation that the sale would be made by executing the sale deed and registered after obtaining necessary permission from the lessor. The agreement for sale is dated 7.12.1978. It is further stated that Surendra had handed over the original lease deed. But thereafter Surendra demanded more money and further sum of Rs.20,000/- was paid. The price of land was finally enhanced and settled at Rs. 53,000/-. Surendra expired in 2003 before obtaining permission for sale from the lessor. The father of defendant no. 6 thereafter also died on 23.11.2003. The defendant no. 1 to 4 having already executed as deed of power of attorney in favour of the plaintiff and thus apprehending sale of land to be made on the strength of said power of attorney, the defendant nos. 6 field Civil Suit No. 23 of 2003 for specific performance of contract. 7. Faced with such rival pleadings, the trial court framed altogether six issues. However, out of all those, issue no. 6 field Civil Suit No. 23 of 2003 for specific performance of contract. 7. Faced with such rival pleadings, the trial court framed altogether six issues. However, out of all those, issue no. 3 is the vital one as in case of an answer to the same in favour of the plaintiff, there remains no alternative but to decree the suit and granting the reliefs as prayed. For better appreciation, issue no. 3 is reproduced herein below:- “If the deed of cancellation dated 28.7.04 executed by the defendant nos. 1 to 4 cancelling the deed of attorney dated 14.11.2003 executed in faovur of the plaintiff is null and void and so was also the subsequent power of attorney executed by defendant nos. 1 to 4 in favour of defendant no.5.” 8. The appeal has been admitted on the following substantial questions of law:- i. Whether the learned lower appellate court has committed an error of law in reversing the finding of the learned trial court in issue no. 3 without discussing and meeting the grounds on which the said issue was answered in negative by the learned trial court? ii. Whether the learned appellate court has committed an error of law in holding that the power of attorney is an irrevocable one, relying upon an agreement to sell immovable property executed between the parties on the same day and as to whether he is correct in holding that both the deeds; i.e., the power of attorney as well as the agreement to sell constitute a single transaction and further relying upon the agreement to sell to come to the conclusion that the power of attorney is irrevocable?” 9. At the outset the learned counsel for the parties are unanimous on the point that the trial court has proceeded to render the decision on the said issue by not examining the matter from all angles, especially, keeping in view the provision of Sections 201 and 202 of the Contract Act. They are also in agreement that the trial court’s approach to the subject ought to have been in the direction of finding out as to whether the first power of attorney executed by defendant nos. They are also in agreement that the trial court’s approach to the subject ought to have been in the direction of finding out as to whether the first power of attorney executed by defendant nos. 1 to 4 in favour of the plaintiff is revocable or irrevocable by taking the evidence on record into consideration and also all other surrounding and attending circumstances and subsequent developments as those emanate from the admitted case of the parties and emerge from the evidence let in by them. 10. Learned counsel for the appellant submits that the lower appellate court has committed error of law by holding the first deed of power of attorney in favour of the plaintiff as irrevocable and to have created interest over the subject matter i.e. suit land in favour of the plaintiff. In this connection, he has highlighted the aspect that on the very day there having been execution of the power of attorney as well as the agreement for sale in favour of the plaintiff which run contrary to the pleadings in the plaint, the very power of attorney executed is to be held to have been given a total good bye. Placing recitals of both the documents, he contends that by no stretch of imagination, the deed of power of attorney can said to be irrevocable one, to have created any interest over the subject matter in favour of the plaintiff. For the purpose, he has placed reliance upon the following decisions:- (i) Mukharasu Thivar vs. Mayandi Seva and others: AIR 1968 Madras 333; (ii) N.J. Kotaigah vs. A. Divakar and others: AIR 1985 Andra Pradesh 30. His further contention is that the finding of the lower appellate court is unsustainable both the law and fact and therefore the judgment and decree passed in the first appeal are liable to be set aside. 11. Learned counsel for the respondent no. 1 supporting the finding of the lower appellate court submits that the approach made by it as seen is keeping in view the relevant provisions of the Contract Act. The examination of evidence has been properly made to find out the nature of the first power of attorney in finally holding it to be irrevocable. According to him, the very conduct of execution of the power of attorney and examination for sale on the same day by the defendant nos. The examination of evidence has been properly made to find out the nature of the first power of attorney in finally holding it to be irrevocable. According to him, the very conduct of execution of the power of attorney and examination for sale on the same day by the defendant nos. 1 to 4 rather runs as a strong circumstance in favour of rendering a finding that the power of attorney is irrevocable and thus it has been rightly so held by the lower appellate court in further considering the evidence as also other surrounding circumstances in the backdrop of the rival pleadings. He also contends that in the second appeal, this Court should not substitute any finding on reappreciation of evidence merely because another view is possible to be taken. So far as this second limb of contention, he has cited the following decisions wherein the power and scope of the High Court in interfering with the finding of fact recorded by the first appellate court as the final court of fact has been discussed and settled and also the circumstances as to when such interference may be justified:- A. K.V. Ratnam (D) 2 LRs vs. P. Vekeyama, 2009 (2) Civil Court Cases 390 (SCC); B. Daulat Singh vs. Muradaba Dev, 2014 (4) CCC 634; C. Municipal Committee Husiar Singh vs. Punjab State Electricity Board and others, 2011 (1) CCC 001; D. Naisir Kour vs. Col. Suraj Singh (D) 2 LRs and others: 2013 (3) CCC 139; E. Damodar Namdev Sase and others vs. Namdev Babu Rao Sase: 2009 (1) CCC 662 Bombay; F. Kishore Das Jain (d) 2 LRs vs. Sohanlal (d) LRs.: 2000 (1) CCC 673; G. Basi Bai vs. Parbati Bai: 1995 (2) CCC 717; H. Commissioner Hindu Religious and Charitable Endowment vs. K.Mugam and others: 2005 (9) SCC 322. 12. In order to address the rival submission and side by side answer the substantial questions of law as aforementioned, it is felt desirable to take note of relevant pleadings of the parties as those will have great bearing in the above exercise. 12. In order to address the rival submission and side by side answer the substantial questions of law as aforementioned, it is felt desirable to take note of relevant pleadings of the parties as those will have great bearing in the above exercise. (a) It is stated in para-3 of the plaint that after the death of Surendra, his successors induced the plaintiff to purchase the suit land and the plaintiff became interested to purchase the same although his apprehension remained as regards obtaining permission from the Government for converting the lease hold land to the free hold. Therefore, when he expressed the same before the defendant nos.1 to 4, they said that they required money immediately. So it is said that an agreement for sale was executed on 14.11.2003 by defendant nos. 1 to 4 in favour of the plaintiff on receipt of the sum of Rs.1,50,000/-, and thereafter they insisted the plaintiff on that very day to pay more money for which the plaintiff was put to serious problem and he immediately desired the agreement to be cancelled and the money to be paid back. It is next stated that at that juncture, the defendant nos. 1 to 4 did not agree to revoke the agreement and rather they insisted the plaintiff to take power of attorney from them to sale said land to any of his relation or outsider. But they requested him that at least a sum of Rs.3,00,000/- more be paid as within six months the process of conversion of lease hold to free hold would get completed. Thus the deed of power of attorney came into being and it was registered. (b) While traversing the above plaint averments, it has been stated by the defendant nos. 1 to 4 that they had executed the power of attorney in favour of the plaintiff on 14.11.2003. However it was cancelled on 28.07.2004. It is also stated that an unregistered agreement for sale was also executed by them in favour of the plaintiff. They further stated that after cancellation of the power of attorney in favour of the plaintiff, the same was communicated to the plaintiff in his address. But somehow when the plaintiff managed the letter to be returned unserved with the help of postal people, a notice was published in Oriya daily news paper “Samaya” about said cancellation of power of attorney. 13. But somehow when the plaintiff managed the letter to be returned unserved with the help of postal people, a notice was published in Oriya daily news paper “Samaya” about said cancellation of power of attorney. 13. The suit is for the principal relief of declaring that the deed of cancellation dated 28.07.2004 as executed by defendant nos. 1 to 4 cancelling the power of attorney dated 14.11.2003 in favour of the plaintiff as null and void and all the consequential action taken up thereafter. In other words, to hold that prior deed of power of attorney dated 14.11.2003 as irrevocable one although in specific there is no prayer to that effect. 14. Section 201 of the Contract Act deals with termination of the agency. Next section 202 of the Contract Act with which are concerned reads as under:- “Where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot in the absence of an express contract, be terminated to the prejudice of such interest.” Illustration-A which is relevant for the given case reads as under:- A gives the authority to B to sell the lease land and to pay himself out of the proceeds, the debt due to him form-A. A cannot revoke his authority nor can it be terminated by his insanity or death. 15. On a harmonious reading of the above, it is seen that if the interest created in the agent is in the result or the proceeds arising after the exercise of the power then the Agency is revocable and cannot be said to be an irrevocable agency. However, if the interest in the subject matter, say a debt payable to the principal, is assigned to the agent as security simultaneously with the creation of the power and thereafter the agent exercises the power to collect the debt for discharge of an obligation owned by the principal in favour of the agent or owned by the principal in favour of a third party, then the agency becomes irrevocable. It is also the position that an agency to be irrevocable should create in the agent an interest in the subject matter contemporaneously with the document wherein such agency is created and it cannot be left to chance or guess or inference. 16. It is also the position that an agency to be irrevocable should create in the agent an interest in the subject matter contemporaneously with the document wherein such agency is created and it cannot be left to chance or guess or inference. 16. Before proceeding further, it is felt apposite to take note of the pronouncement of the Hon’ble Apex Court in case Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Another, 2009 (7) SCC 363 and 201 (I) SCC 656 of the Hon’ble Apex Court addressing the avoidance of execution and registration of conveyance as the mode of transfer of immovable property due to the increase in the tendency to adopt General Power of Attorney sales, sale agreements, General Power of Attorney and Will transfer as substitute of execution and registration of regular deeds of conveyance on receiving full consideration. It has been pointed out that the modus operandi in such SA/GPA/Will transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver of possession of the property to the purchaser and execute the documents or variations such as:- (a) An Agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future. Or an Agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute sale deed whenever required. (b) An Irrevocable General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing him to manage, deal with the dispose of the property without reference to the vendor. Or A General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing the attorney holder to sell or transfer the property and a Special Power of Attorney to manage the property. However, it has been said that the above transactions are not to be confused or equated with genuine transactions where the owner of property grants Power of Attorney in favour of a family member or friend to manage or sale his property, as he is not able to manage the property or execute the sale personally. However, it has been said that the above transactions are not to be confused or equated with genuine transactions where the owner of property grants Power of Attorney in favour of a family member or friend to manage or sale his property, as he is not able to manage the property or execute the sale personally. The transactions where a purchaser pays the full price but instead of getting deed of conveyance get SA/GPA/Will as mode of transfer either at the instance of vendor or its own instance, the Hon’ble Apex Court have then gone to narrate the ill-effect of such SA/GPA/Will transactions as the generation of black money, growth of land mafia and criminalization of civil disputes. Para - 13 and 16 of the judgment are relevant and reproduced as those to some extent would be relevant for the case before us here:- “13. A power of attorney is not an instrument of transfer in regard to any right, title, or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In the State of Rajasthan vs. Basant Nehata, 2005 (12) SCC 77, this Court held:- “A grant of power of attorney is essentially governed by Chapter X of the contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, the executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee is exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.” Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. 16. We therefore, reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of ‘GPA sales’ or ‘SA/GPA/WILL transfers’ do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the T.P. Act. Such transactions cannot be relied upon or made the basis of mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.” 17. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.” 17. The plaintiff in the present case has based his claim for grant of the reliefs as prayed for asserting that the deed of power of attorney which has been executed by the defendant no. 1 to 4 i.e., Ext. 11 is an irrevocable one and therefore, it’s cancellation as made by the principal by executing Ext. 10 is not legally permissible and has no worth even of the papers written on and said power of attorney Ext. 11 squarely falls with the protection provided in section 202 of the Contract Act. 18. Admitted fact remains that the plaintiff who is the attorney appointed by the defendant no. 1 to 4 under Ext. 11 is a stranger to the family to those defendants. The nomenclature of the said power of attorney which is asserted by the plaintiff to be irrevocable one is “General Power of Attorney”. Being conscious of the settled position that the nomenclature of the document is not always the decisive factor now therefore the powers conferred upon the agent under that very deed of power of attorney are required to be viewed. The followings are the powers given thereunder:- “1. To apply for demarcation and mutation of the said property mentioned below to the concerned authorities in our name and on our behalf and apply for the permission or free hold of the land stated in schedule below in G.A. Department, Govt. of Orissa. 2. To deposit necessary fees, taxes, rents and charges thereof relating to property mentioned in schedule below and obtain receipts thereof from the concerned authorities in our name and on our behalf. 3. To apply for approval of layout and building plan to BDA, to swear affidavits for the said purpose and receive approved plan in our name and on our behalf. 4. To purchase, take on lease, take charge or mortgage or/and to acquire in any manner and to sell, mortgage, settle, charge, lease, grant tenancy or otherwise transfer and/or in any manner and/or on any terms deal with scheduled properties or any interest therein. 5. 4. To purchase, take on lease, take charge or mortgage or/and to acquire in any manner and to sell, mortgage, settle, charge, lease, grant tenancy or otherwise transfer and/or in any manner and/or on any terms deal with scheduled properties or any interest therein. 5. To pay licence fees, maintenance charges, electricity charges, corporation taxes and all other sum of money receivable in respect of our properties and to make all just and reasonable allowance therein in respect of rates, taxes, repairs and other outgoings and to take all necessary steps whether by action, distress or otherwise to recover any property or sums of money in arrear. 6. To negotiate to sell the said property receive part (in advance)/full consideration money and execute agreements for the purpose if necessary, and to sell the said property by purchasing Stamp papers, sign and execute sale deed and any deed of conveyance, present the same and appear before the registering authority for registration and admit execution thereof. This deed of General Power of Attorney is valid till sale of the land. 7. To apply for and obtain electricity gas, water, sewerage and/or connections of any utilities and/or to make alterations and/or close down and/or have disconnected the same in my scheduled properties. 8. To sign and give any notice to any occupier of said property belonging to us to quit or to repair or to able any nuisance or to remedy any breach of covenant or for any other purpose whatsoever in our name and on our behalf. 9. To enforce any covenant in any lease, licence or tenancy agreement or any other document affecting our said property and if any right to re-enter arises in any manner under such covenants or under notice to quit, then to exercise such rights amongst others. 10. To worn off and prohibit and if necessary proceed against in due forum of law against all trespassers on the scheduled property and to take appropriate steps whatever by action or otherwise and to abate all nuisances. 11. To appoint Advocate, Moharir Agents etc. sign Vakalatnama, petitions and written statements, file suits, revisions and appeals in all courts and offices if necessary. 12. To deposit and receive documents and moneys in and from any Court or Courts and/or any other person or authority in my name and give valid receipts and discharges thereof. 13. 11. To appoint Advocate, Moharir Agents etc. sign Vakalatnama, petitions and written statements, file suits, revisions and appeals in all courts and offices if necessary. 12. To deposit and receive documents and moneys in and from any Court or Courts and/or any other person or authority in my name and give valid receipts and discharges thereof. 13. To execute, to become party and if necessary to cause to be registered all instruments, deeds, agreements, contracts, receipts/any other documents for us and on our behalf. 14. And generally our said Attorney shall have the power to do all such acts, deeds and things on our behalf as we could have lawfully done if personally present.” 19. Given a plain and simple reading to all those above, it does not lead to say that any such interest over the subject matter was created upon the agent by the same. Nothing is mentioned about the payment of any sum by the plaintiff to defendant no. 1 to 4. The provision of section 202 of the Contract Act is very clear that where the agent himself has an interest in the property which forms the subject matter, the agency cannot be terminated in the absence of an express contract to the prejudice of such interest. This pre-supposes that either the agent must have been carrying interest over the subject matter before the creation of agency by some way or other or must have derived the interest in the property which forms the subject matter of the agency under that very deed of creation of agency. 20. Adverting to the case of the plaintiff, it is seen to have been pleaded there in the plaint that the defendant no. 1 to 4 executed an agreement for sale and as per the demand for more money and to meet it they wanted that the agreement be cancelled and the plaintiff should take a deed of power attorney to sale the land. So, they came forward to execute the deed of execution of power of attorney in favour of the plaintiff and that they did. Interestingly enough in the deed of power of attorney Ext. 11, there is absolutely no mention either directly or indirectly about the said agreement for sale. It has not at all been referred to at any place. So, they came forward to execute the deed of execution of power of attorney in favour of the plaintiff and that they did. Interestingly enough in the deed of power of attorney Ext. 11, there is absolutely no mention either directly or indirectly about the said agreement for sale. It has not at all been referred to at any place. Rather in the deed of agreement, reference has been made to this general power attorney, Ext. 13. It has been recited therein “that the first party members are agreed for not to revoke the GPA deed executed in favour of the second party only the clauses/act mentioned in the deed is violated/outraged by the second party in any manner”. (Quoted in verbatim) So, above being the state of affairs by no stretch of imagination it can be said that while creating agency in favour of the plaintiff by the defendant no. 1 to 4 any interest was created over the subject matter of agency upon the agent or it was so subsisting by then which got followed up or further affirmed by the creation of agency. The view taken by the trial court as also the lower appellate court that for the purpose of ascertaining the said fact, Ext. 11 and 13 have to be read together in my considered view is wholly erroneous. Those for the above reasons and discussion are found to be two distinct documents being not at all in any way dependent on one another. The simple reason is that as per own showing of the plaintiff when Ext. 13 came to be executed, the plaintiff was not the agent of the defendant no. 1 to 4 and he was appointed as such by them under Ext. 11 whereby he had been authorized to sale the property, receive the full consideration, execute the agreement for the purpose if so necessary, present the deed of conveyance before the authority and admit its execution before the authority on behalf of the defendant no. 1 to 4. Thus, whatever right if any has been created upon the plaintiff by virtue of Ext. 13 cannot be said to have been so derived under Ext. 11 and the same appears to have been given a go-bye. Ext. 13 can in no way be taken aid of so as to say that Ext. 1 to 4. Thus, whatever right if any has been created upon the plaintiff by virtue of Ext. 13 cannot be said to have been so derived under Ext. 11 and the same appears to have been given a go-bye. Ext. 13 can in no way be taken aid of so as to say that Ext. 11, the deed of power of attorney was thus irrevocable since as per the agreement Ext. 13, plaintiff is said to have paid a sum of Rs. 1,50,000/- to the defendant no. 1 to 4. Also neither in Ext. 11 nor in Ext. 13 anything is stated about the delivery of possession of the subject matter i.e. the land in question by the defendant no. 1 to 4 to the plaintiff. Thus the view taken by the lower appellate court that Ext. 11, the deed of power of attorney executed by defendant no. 1 to 4 is an irrevocable one is clearly unsustainable. 21. By holding so, this Court in the case is not going to substitute its own finding on re-appreciation of evidence merely on the ground that another view is possible nor this Court is going to interfere that the finding of fact recorded by the lower appellate court in a routine or casual manner by substituting its subjective satisfaction, whereas in the present case the interference with the finding of the lower appellate court is being made finding that the core question involved in this case has not been decided by the lower appellate court in its proper legal prospective. Thus, the catena of decisions (supra) cited by the learned counsel for the respondent no. 1 in lying down the principles of restraint to be observed by the court in seisin of the second appeal as regards its interference with the finding of fact do not come to apply here in restraining this Court from interfering with the finding on the core issue recorded by the lower appellate court and in setting aside the judgment and decree passed by it. For the aforesaid discussion and reasons, it is thus held that the judgment and decree passed by the lower appellate court are liable to be set aside which is hereby done and those of the trial court are hereby restored although on different ground and for different reasons as aforestated. For the aforesaid discussion and reasons, it is thus held that the judgment and decree passed by the lower appellate court are liable to be set aside which is hereby done and those of the trial court are hereby restored although on different ground and for different reasons as aforestated. In view of the above, the petition filed by the respondent no. 1 giving rise to Misc. Case No. 123 of 2016 for taking into consideration the subsequent events so as to declare further acts and deeds said to have been done by the appellants as illegal does not more survive for being dealt with and accordingly the said Misc. Case stands dismissed. 22. In the wake of aforesaid, the appeal is allowed. The judgment and decree passed by the learned Additional District Judge-Cum-Addl. Special Judge, (Vig), Bhubaneswar in R.F.A. No. 32 of 2008 are set aside and the suit filed by the appellant as the plaintiff i.e., C.S. No. 105/446 of 2005/2004 thus stands dismissed. In the facts and circumstances, however no order as to cost is passed.