Research › Search › Judgment

Tripura High Court · body

2016 DIGILAW 31 (TRI)

Amar Suklabaidya v. Utpal Chowdhury

2016-02-05

S.TALAPATRA

body2016
JUDGMENT : Heard Mr. D.R. Choudhury and Mr. S. Sarkar, learned counsel appearing for the appellants as well as Mr. R.G. Chakraborty, learned counsel appearing for the respondents. 2. Both these appeal filed under Section 100 of the CPC being RSA No.17 of 2012 and RSA No.18 of 2012 are clustered for disposal by a common judgment inasmuch as RSA No.17 of 2012 which has emerged from Title Suit No.10 of 2009 and RSA No.18 of 2012 which has emerged from the Title Suit (Counter Claim) No.28 of 2009 are closely interlinked. It is to be noted at this juncture that Title Suit (Counter Claim) No.28 of 2009 is the offshoot of the Title Suit No.10 of 2009. 3. The respondents herein instituted the suit for declaration of title and recovery of possession of the suit land on eviction of the defendants, the appellants, in both RSA No.17 of 2012 and RSA No.18 of 2012. The plaintiffs’ case in brief is that they inherited the suit property as the legal heirs of Sri Umesh Chandra Chowdhury who purchased the suit property jointly with his brothers by two separate deeds in different years i.e. 1950 and 1951 from Imtiaz Ali, Mouras Bibi and others. Thereafter, the plaintiffs' predecessors as stated took over possession. In view of that possession the revenue records by way of mutation was created in their favour. Subsequently, the predecessor of the plaintiffs and the other co-purchaser separated the property amicably by a registered partition deed. After demise of Umesh Chandra Chowdhury, the father of the plaintiffs, the plaintiffs and their mother succeeded to the suit property and accordingly revenue the records were mutated in their favour. The plaintiffs have also disclosed that about 30(thirty) years back Chitta Ranjan Suklabaidya, the father of the defendants approached Umesh Chandra Choudhury for permission to use the suit land for purpose of setting up a laundry and house for their living and as the predecessor had his trust in him he permitted the defendants' predecessor to possess that land with condition that the land shall be handed over on demand. The plaintiffs have also admitted that after death of Chitta Ranjan Suklabaidya his sons and daughters or the heirs continued to possess the suit land and they were carrying on the laundry and there was no objection from the plaintiffs. The plaintiffs have also admitted that after death of Chitta Ranjan Suklabaidya his sons and daughters or the heirs continued to possess the suit land and they were carrying on the laundry and there was no objection from the plaintiffs. For management of the said property one Ajit Kumar Nandi was nominated and constituted as the attorney of the plaintiffs who proposed to the defendants by a notice dated 12.02.2009 that if the defendants are interested to purchase the said land at the market rate [the total land was valued at 14(fourteen) lakhs] they may accept that offer and purchase the land else they shall vacate the land. The defendants were given 7(seven) days for their reply. As it appears that no reply was given to the said communication and the defendants did not vacate the said suit property. Again on 27.02.2009, the plaintiffs served a notice on the defendants through Mr. Sakti Prakash Datta Purkayasta, advocate, who received the instruction from the said attorney, for vacating the suit property within 15(fifteen) days from the day of receipt of that notice. In para5 of the said notice (Exbt.-6 series) the following has been asserted for the plaintiff: “That, before now, as a matter of humanity, my clients' attorney offered by a letter to notice recipient no.1 to purchase their involved property if he at all desired to do so, and their letter was received by him on 17.02.2009 under regd. post a.d; but he did not respond thereto. In fact, my clients require thin involved property to their own purpose and they need to get back their property free of their occupation. They have sold out their contiguous land portions; and if need be, they will either occupy & enjoy their involved property by themselves or will purchase more suitable property else by selling off the same.” 4. However, this time there was a response from Dhrubajyoti Goswami, Advocate for the defendants where it has been categorically stated as under: “The notice recipients could not collect the necessary papers/documents in c/w the involved land of your notice and as such could not give the reply of letter dtd. 12.02.2009 served by Mr. Ajit Kumar Nandi, the self designated attorney of your clients, within the very short stipulated period of seven days. 12.02.2009 served by Mr. Ajit Kumar Nandi, the self designated attorney of your clients, within the very short stipulated period of seven days. Moreover, very recently the notice recipients have received your notice dated 27.02.2009 unexpectedly while my clients are ready to give the reply of the letter dtd.12.02.2009 served by Mr. Ajit Kumar Nandi. However, in the above circumstances with a view to avoid future anomaly/dispute and multiplicity of suits/cases between the parties and keeping in mind the peace and tranquillity my clients are interested to purchase the involved land described in the Schedule of your notice dtd. 27.02.2009 at the present market price as desired by Mr. Ajit Kumar Nandi (the attorney of your clients) through his letter dtd. 12.02.2009.” 5. It is the admitted position that thereafter the suit was instituted by the respondents in these appeals. The appellants have been very consistent in taking that stand in the written statement filed against the plaint in Title Suit No.10 of 2009 and in the counter claim, being Title Suit (Counter Claim) No.28 of 2009. The trial court, Civil Judge, North Tripura, Dharmanagar decided both the suit and the counter claim by the common judgment dated 24.06.2010 dismissing the suit and the counter claim after returning the finding which has been reflected in para-15. For purpose of reference para 15 of the said judgment is re-produced hereunder: “We have discussed hereinabove that in view of the law laid down by the Hon'ble Supreme Court in the decision cited supra the evidence of the attorney (P.W.1) of the plaintiffs in support of the case of the plaintiffs is not acceptable. His evidence keeping aside there is no other cogent evidence for the plaintiffs to prove their case. In this situation I cannot but hold that the plaintiffs have failed to prove their case by adducing evidence. They are not found entitled to a declaration of their right, title and interest and recovery of possession of the suit land. Issue no.4 and 5 of T.S.10 of 2009 are therefore decided against the plaintiffs. In this situation I cannot but hold that the plaintiffs have failed to prove their case by adducing evidence. They are not found entitled to a declaration of their right, title and interest and recovery of possession of the suit land. Issue no.4 and 5 of T.S.10 of 2009 are therefore decided against the plaintiffs. I have also discussed in detail the case of the defendants/counter claimants and evidence adduced on their behalf in support of their case and in view of what is discussed above it is held that the defendants/counter claimants have filed to make out a case to entitle themselves to the decree as prayed for and in consequence issue no.4 and 5 of T.S.28(C.C) of 2009 are also decided against the defendant/counter claimants.” 6. In this regard, it is necessary to point out that the suit was instituted for declaration of title and recovery of possession by way of evicting the defendants whereas in the counter claim the defendants claimed that they were in possession almost for six decades and reclaimed the land. They are possessing the said land adversely beyond the prescription. They have further asserted that on the face of the offer of Rs. 14 lakhs as the consideration for sale of the suit property, the defendants offered a sum of Rs.3,20,000/-for the suit land measuring 0.44 acres as described in the schedule of the plaint. It is thus admitted position that there was no agreement on the consideration money for purchase of the land and as such it cannot be held there was any valid contract to sale within the meaning of the Indian Contract Act. It is apparent that the suit was dismissed by the trial court for the reason that the attorney's deposition cannot be accepted as evidence for purpose of deciding a dispute by the court. In this regard, a decision of the apex court in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others reported in AIR 2005 SC 439 has been relied on by the defendants and the judgment is entirely based on the interpretation of the law as enunciated in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others. 7. 7. Being aggrieved by that judgment, the plaintiffs preferred the appeal under Section 96 of the CPC being Title Appeal No. 16 of 2010 and the defendants filed the appeal against the judgment for dismissal of their counter claim being Title Appeal (Cross) No. 12 of 2011. By the common judgment dated 16.01.2012, the Title Appeal No.16 of 2010 was allowed whereas the Title Appeal (Cross) No. 12 0f 2011 was dismissed. As such the finding in respect of the Title Suit (Counter Claim) 28 of 2009 are concurrent in nature. Unless perversity in the matter of appreciation of the evidence is demonstrated or the illegality is shown, in a second appeal under Section 100 of the CPC, this court would not direct its inquiry for re- appreciation of the evidence. While allowing the appeal filed by the plaintiffs being Title Appeal No. 16 of 2011, the appellate court has observed as under: “As regards the issue No.4 of TS 10 of 2009 I find that the Ld. Trial court has held that on account of the power of attorney being not specific about the giving of deposition by the attorney, the evidence of the attorney in the form of affidavit of examination in chief is not acceptable and there is no other cogent evidence for the plaintiffs to prove their case and accordingly he has held that the plaintiffs have failed to prove their case by adducing evidence and so they are not found entitled to a declaration of right, title and interest and recovery of possession of the suit land. But upon hearing Ld. counsel for both sides and having gone through the evidence and materials on record, I find that the view of the evidence taken by the Ld. trial court is erroneous. Because from the khatians i.e. exhibit-5(series) and exhibit-C, it is clear that the plaintiffs namely Utpal Choudhury and Smt. Kumkum Choudhury are the recorded owners of the suit land and the defendants are the permissive possessors thereof. Situated thus there is no impediment to hold that the plaintiffs have right, title and interest over the suit land. Moreover as regards the question of the deed of power of attorney being non specific about giving of deposition by the attorney as pointed out by the Ld. Situated thus there is no impediment to hold that the plaintiffs have right, title and interest over the suit land. Moreover as regards the question of the deed of power of attorney being non specific about giving of deposition by the attorney as pointed out by the Ld. trial court, I find that in the appellate stage the plaintiff/appellants adduced a power of attorney dated 15.07.2010 as additional evidence under order 41 rule 27 CPC whereby the plaintiffs have ratified the act of giving deposition by the attorney by affidavit of examination in chief in the trial before the Ld. trial court and the said prayer for adducing additional evidence by the plaintiff/appellant were allowed by this court by order dated 27.05.2011. Accordingly the findings of the Ld. trial court in this regard is reversed and it is held that the plaintiffs have right, title and interest over the suit land. As regards the issue no.4 and 5 of TS 28(CC) of 2009, I am of the opinion that since the defendants are the permissive possessors of the suit land and since they have failed to prove the existence of any legally enforceable agreement of sale with the plaintiffs in respect of the suit land, the defendants/counter claimants are not entitled to the decree as prayed for. Accordingly the issue no.4 and 5 of TS 28(CC) of 2009 are found to be rightly decided by the Ld. trial court in the negative and against the defendants/counter claimants. As regards the issue no.5 of TS 10 of 2009 i.e. whether the plaintiffs are entitled to the recovery of possession of the suit land in their favour, I am of the opinion that in view of my decision in the issue no.4 of TS 10 of 2009 holding that the plaintiffs have right, title and interest over the suit land and that the defendants/counter claimants are the permissive possessors in the suit land, the plaintiffs are entitled to a decree of recovery of possession of the suit land. Issue no.5 of TS 10 of 2009 is accordingly answered in the affirmative and in favour of the plaintiffs/appellants.” 8. It is apparent that in the first appellate stage the plaintiffs, namely Utpal Chowdhury and Smt. Kumkum Chowdhury were permitted to depose in the suit when they ratified the statements made by their attorney, Sri Ajit Kumar Nandi. Issue no.5 of TS 10 of 2009 is accordingly answered in the affirmative and in favour of the plaintiffs/appellants.” 8. It is apparent that in the first appellate stage the plaintiffs, namely Utpal Chowdhury and Smt. Kumkum Chowdhury were permitted to depose in the suit when they ratified the statements made by their attorney, Sri Ajit Kumar Nandi. That apart, the original deed of the power of attorney was also admitted as the additional evidence by the first appellate under Order 41 Rule 27 of the CPC. Such adduction of additional evidence was permitted by the first appellate court by the order dated 27.05.2011. 9. At the time of admitting the appeal, being RSA No.17 of 2012, the following substantial questions of law were formulated: i) Whether the offer to sell the suit land made by the respondents and accepted by the appellants was not considered in true spirit of the provisions prescribed in the Indian Contract Act by the trial Court and the first appellate Court? ii) Whether the judgment and decree passed by the first appellate Court in TA 16/2010 suffer from perversity? In the RSA No.18 of 2012 no substantial question of law was formulated at the time of admission, but by the order dated 10.05.2012 the following has been observed: “RSA No. 17 of 2012, arising out of the same judgment and decree, has already been admitted for hearing and necessary order has already been passed. Further substantial question of law in this appeal is not required.” 10. The appellants did not press for formulating the substantial question of law in the second appeal from the counterclaim in terms of sub-section 4 of Section 100 of the CPC which provides that: “Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.” Unless there is existence of the substantial question of law, a second appeal cannot be admitted. The substantial question of law as formulated in RSA No.17 of 2012 may have some impact as the facts may be overlapping. Unless the substantial question of law is formulated, usually this court is under no obligation to hear the appellant. However, averting this mechanical approach, this court is of the view that if the decision is rendered in RSA No.17 of 2012 that decision would squarely cover RSA No.18 of 2012. Unless the substantial question of law is formulated, usually this court is under no obligation to hear the appellant. However, averting this mechanical approach, this court is of the view that if the decision is rendered in RSA No.17 of 2012 that decision would squarely cover RSA No.18 of 2012. But this practice, this court is constrained to observe, is not in accordance with law. Hence, this court would not record separate findings in respect of RSA No.18 of 2012. From the substantial question as framed by this court in RSA No.17 of 2012, two distinct questions fall for consideration which are : whether there existed any contract to sale in respect of the suit property and whether the appellants, the defendants in the suit and the counter-claimants in Title Suit (Counter Claim) No.28 of 2009 do have any right to continue with the possession or not? The other question which might not be the part of the substantial question of law, has been repeatedly urged by Mr. D.R. Choudhury, learned counsel appearing for the appellants is related to interpretation as given by the first appellate court as to the judgment of the apex court in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. And others reported in AIR 2005 SC 439 . By filing the written statement and the counter-claim the appellants have categorically admitted the ownership of the plaintiffs. The appellants have communicated their counter-offer for purchase and such communication comes within the meaning of Section 3 of the Indian Contract Act and that they were ready to purchase the suit property at the market value. After such unequivocal communication the plea of adverse position as raised in the written statement cannot be maintained and the defendants are to be held as the permissive possessor of the plaintiffs for all purposes since it is not disputed by the parties that the defendants were in possession at the relevant point of time. Hence, the defendants, the appellant herein, had no right to continue with the possession unless the permission was extended. Since the permission was withdrawn, the defendants continued as the trespassers and they are liable to be evicted from the land in accordance with law. The plaintiffs' right as the owner to get recovery of the possession cannot be disputed or refuted in such circumstances. Since the permission was withdrawn, the defendants continued as the trespassers and they are liable to be evicted from the land in accordance with law. The plaintiffs' right as the owner to get recovery of the possession cannot be disputed or refuted in such circumstances. The other question which is closely related to the dispute is that since there exists a contract, the plaintiffs are under obligation to perform that contract. This court is constrained to say that there was no contract to sale at all, inasmuch as there was no agreement as to the consideration money of the proposed sale. Unless the consideration of the sale is agreed upon and other conditions are laid down as to the purchase, any negotiation, which is inconclusive in nature, cannot be brought within the meaning of Section-10 of the Indian Contract Act and as such the first appellate court has correctly returned the finding there did not exist any contract to sale and as such there was no question of its performance. The further question which is not the part of the substantial question of law, is that whether the first appellate court interpreted the judgment of the apex court in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. And others reported in AIR 2005 SC 439 correctly. The law as to the extent of admissibility of the attorney's deposition has been as under: 15. Apart from what has been stated, this Court in the case of Vidhyadhar vs. Manikrao and Another, (1999) 3 SCC 573 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. xxxxx xxxxx xxxxx 17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri Vs. 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. 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 Vs. Hari Narain & Ors., 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. 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 Vs. Minguel Carlos Dias reported in 2000 Vol. 102 (1) Bom. 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. xxxxx xxxxx xxxxx 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. [Emphasis supplied] 11. The power of attorney holder of a party can appear as a witness in his personal capacity and for whatever knowledge he has about the case but he cannot depose as the witness on behalf of the party or in the capacity of that party. If the plaintiff is unable to appear in the Court, a Commissioner for recording his evidence may be issued under the relevant provisions of the CPC. If the plaintiff is unable to appear in the Court, a Commissioner for recording his evidence may be issued under the relevant provisions of the CPC. The trial court has recorded the observation, contrary to what the apex court has held and that view is not correct position of law. The law that has been culled out by the apex court can be available in the para-13 of the said judgment where it has been enunciated that Order III, Rules 1 and 2, CPC empower the holder of power of attorney to “act” on behalf of the principal. The word “acts” employed in Order III, Rule 1 and 2, CPC are confined 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 the 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 to the matter which only the principal can have a personal knowledge and in respect of which the principal is liable to be cross-examined. Therefore, it transpires clearly that what is within the personal knowledge of the principal, the attorney cannot depose on such fact in the proceeding. His deposition should be confined only to 'acts' known to him as the attorney or what he has discharged as the attorney in his capacity as the attorney or what was within his personal knowledge as the attorney, not beyond that. In this case however, two plaintiffs in the first appellate stage appeared and ratified the statements of the attorney. In terms of Section-2 of the Power of Attorney Act, such ratification is permissible. But whether the procedure that has been followed is proper or not, the matter may be shrouded but since there is no challenge against such procedure in this present appeal, this court will not make any exercise obviously for the reason that the suit or the counter-claim could have been disposed of on the basis of the admission of fact by the defendants and the plaintiff. Since there is no dispute regarding the title, status of the defendants as the permissive possessor and non-existence of contract to sale, the trial court had unnecessarily dealt some materials which were not required. 12. In the result, the finding as returned by the first appellate court by the common judgment dated 16.01.2012 cannot be faulted with. In consequence of this observation, both the appeals stand dismissed. Draw the decree accordingly and send down the LCRs thereafter.