# MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA (DEAD) THROUGH LRS. & OTHERS

- **Citation:** [2023] 4 S.C.R. 140
- **Court:** Supreme Court of India
- **Decided:** 2023-01-13
- **Case number:** Civil Appeal No. 2965 of 2022
- **Bench:** M. R. Shah, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manik-majumder-and-others-v-dipak-kumar-saha-dead-through-lrs-others-37032
- **Pages:** 48

## Headnote

Registration Act, 1908 - ss. 32, 33 and 60 - Execution of
sale deed on the strength of a deed of Power of Attorney - Nonproduction of the deed of power of attorney - Effect of, to the case
of plaintiff in the suit - Power of attorney (PoA) executed outside
India - Presumption as to correctness of the PoA - On facts, PoA
allegedly executed in East Pakistan by the original owner in favour
of respondent No. 2 - Respondent No. 2 thereafter executed two
sale deeds transferring the suit property firstly in his own favour
and then in favour of his wife - Respondents then filed suit for
declaration of title over the subject land and recovery of khas
possession from the appellants - Respondent no. 2 claimed his
ownership on the basis of sale deed executed by the respondent no.
1 in his own favour on the basis of PoA executed by the original
owner, however, the same PoA not produced before the trial court -
Appellant's case that they are the owner of the part of the suit
property and have been in possession for more than 40 years -
Trial court dismissed the suit since no right, title or interest was
established in favour of respondent No.2 for want of PoA for proper
execution of the sale deed in his favour; and that the provisions of
s. 33(1)(c) not complied with - First appellate court upheld the
same - However, the High Court allowed the Second Appeal by
drawing presumption u/s. 60 in respect of PoA by virtue of
endorsement - High Court directed the appellants to handover the
vacant possession of the suit land to the respondent - On appeal,
held: In view of the difference of opinion, the matter referred to the
larger bench - Reference to larger Bench - Power of attorney.
Referring the matter to larger Bench, the Court
Per M.R. SHAH, J.
HELD: 1.1 When the plaintiffs claimed title on the basis of
the aforesaid two sale deeds dated 2.9.1968 and 29.09.1968, it
was for the plaintiffs to prove even the execution of the sale deeds.
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The defendants were not required to challenge the sale deeds in
the suit filed by the plaintiffs, who prayed for a decree for a
declaration of title in their favour. When plaintiff No.2 claimed
title on the basis of the PoA executed by the original owner and
thereafter executed the sale deed in favour of plaintiff No.1 as
PoA of the original owner, the conditions provided under Section
33(1)(c) of the Registration Act are required to be strictly complied
with. [Para 6][158-G-H; 159-A]
1.2 As per Section 32 of the Registration Act, every
document to be registered under the Registration Act shall be
presented at the proper registration office by some person
executing or claiming under the same, or, by the agent of such a
person, representative or assign, duly authorised by PoA
executed and authenticated in the manner mentioned in Section
33(1)(c) of the Registration Act. Section 33 of the Registration
Act provides that for the purposes of Section 32, only those power
of attorneys shall be recognised as are mentioned in Section
33(1). As per Section 33(1)(c) of the Act, if the principal at the
time of execution of the PoA does not reside in India, a PoA
executed before and authenticated by a Notary Public, or any
Court, Judge, Magistrate, Indian Consul or Vice-Consul, or
representative of the Central Government shall be valid. In the
instant case, the requirement of Section 33(1)(c) of the Act has
not been satisfied at all. Section 32 of the Act is to be read along
with Section 33(1)(c) of the Registration Act. Only in a case where
the execution of the PoA is as per Section 32 read with Section
33(1)(c) of the Act, there shall be statutory presumption under
Section 60 and/or under the provisions of the Registration Act.
Therefore, the High Court committed a grave error in drawing
the statutory presumption in favour of the plaintiffs and more
particularly with respect to alleged PoA alleged to have been
executed by the original owner in favour of plaintiff No.2. As such,
there were concurrent find

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SUPREME COURT REPORTS
[2023] 4 S.C.R.
[2023] 4 S.C.R. 140
140
MANIK MAJUMDER AND OTHERS
v.
DIPAK KUMAR SAHA (DEAD) THROUGH LRS. & OTHERS
(Civil Appeal No. 2965 of 2022)
JANUARY 13, 2023
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Registration Act, 1908 - ss. 32, 33 and 60 - Execution of
sale deed on the strength of a deed of Power of Attorney - Nonproduction of the deed of power of attorney - Effect of, to the case
of plaintiff in the suit - Power of attorney (PoA) executed outside
India - Presumption as to correctness of the PoA - On facts, PoA
allegedly executed in East Pakistan by the original owner in favour
of respondent No. 2 - Respondent No. 2 thereafter executed two
sale deeds transferring the suit property firstly in his own favour
and then in favour of his wife - Respondents then filed suit for
declaration of title over the subject land and recovery of khas
possession from the appellants - Respondent no. 2 claimed his
ownership on the basis of sale deed executed by the respondent no.
1 in his own favour on the basis of PoA executed by the original
owner, however, the same PoA not produced before the trial court -
Appellant's case that they are the owner of the part of the suit
property and have been in possession for more than 40 years -
Trial court dismissed the suit since no right, title or interest was
established in favour of respondent No.2 for want of PoA for proper
execution of the sale deed in his favour; and that the provisions of
s. 33(1)(c) not complied with - First appellate court upheld the
same - However, the High Court allowed the Second Appeal by
drawing presumption u/s. 60 in respect of PoA by virtue of
endorsement - High Court directed the appellants to handover the
vacant possession of the suit land to the respondent - On appeal,
held: In view of the difference of opinion, the matter referred to the
larger bench - Reference to larger Bench - Power of attorney.
Referring the matter to larger Bench, the Court
Per M.R. SHAH, J.
HELD: 1.1 When the plaintiffs claimed title on the basis of
the aforesaid two sale deeds dated 2.9.1968 and 29.09.1968, it
was for the plaintiffs to prove even the execution of the sale deeds.
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The defendants were not required to challenge the sale deeds in
the suit filed by the plaintiffs, who prayed for a decree for a
declaration of title in their favour. When plaintiff No.2 claimed
title on the basis of the PoA executed by the original owner and
thereafter executed the sale deed in favour of plaintiff No.1 as
PoA of the original owner, the conditions provided under Section
33(1)(c) of the Registration Act are required to be strictly complied
with. [Para 6][158-G-H; 159-A]
1.2 As per Section 32 of the Registration Act, every
document to be registered under the Registration Act shall be
presented at the proper registration office by some person
executing or claiming under the same, or, by the agent of such a
person, representative or assign, duly authorised by PoA
executed and authenticated in the manner mentioned in Section
33(1)(c) of the Registration Act. Section 33 of the Registration
Act provides that for the purposes of Section 32, only those power
of attorneys shall be recognised as are mentioned in Section
33(1). As per Section 33(1)(c) of the Act, if the principal at the
time of execution of the PoA does not reside in India, a PoA
executed before and authenticated by a Notary Public, or any
Court, Judge, Magistrate, Indian Consul or Vice-Consul, or
representative of the Central Government shall be valid. In the
instant case, the requirement of Section 33(1)(c) of the Act has
not been satisfied at all. Section 32 of the Act is to be read along
with Section 33(1)(c) of the Registration Act. Only in a case where
the execution of the PoA is as per Section 32 read with Section
33(1)(c) of the Act, there shall be statutory presumption under
Section 60 and/or under the provisions of the Registration Act.
Therefore, the High Court committed a grave error in drawing
the statutory presumption in favour of the plaintiffs and more
particularly with respect to alleged PoA alleged to have been
executed by the original owner in favour of plaintiff No.2. As such,
there were concurrent findings recorded by both the courts below
on non-compliance and/or non-fulfilling the conditions mentioned
in Section 33(1)(c) of the Registration Act. By drawing the
statutory presumption and without properly appreciating and/or
considering the fact that there is a non-compliance of Section
33(1)(c) of the Registration Act there cannot be any statutory
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA
(DEAD) THROUGH LRS. & OTHERS
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presumption, the High Court has set aside the concurrent
findings recorded by both the courts below, in exercise of powers
under Section 100 CPC. [Para 7][160-F-H; 161-A-D]
1.3 Even the conduct on the part of the plaintiffs, more
particularly on the part of plaintiff No.2, executing the second
sale deed in favour of plaintiff No.1-his own wife as a PoA of
original land owner deserves serious consideration. Even
according to the plaintiffs, on the basis of the PoA alleged to have
been executed by the original land owner, plaintiff No.2 executed
the registered sale deed in his own favour dated 3.9.1968. If that
be so, in that case, there was no reason for him to execute the
subsequent sale deed in favour of plaintiff No.1-his own wife as a
PoA of the original land owner. Once he became the owner on
the basis of a registered sale deed dated 3.9.1968, which was
executed by him in his own name as a PoA of the original owner,
he could have executed the sale deed in favour of plaintiff No.1
as the owner and not as a PoA of the original owner. [Para 8][161E-G]
1.4 Another conduct on the part of the plaintiffs submitting
the application to amend the plaint under Order 6 Rule 17 CPC
submitted before the first appellate court also creates doubts
about the genuinity of the PoA. It was never the case on behalf of
the plaintiffs before the trial court and in the suit that the PoA
was handed over by the plaintiffs to original defendant No.1 and
that despite his demands he never returned the same. Having
found and realised that the non-production of the PoA had gone
against them, subsequently, before the first appellate court, the
plaintiffs sought to make out a case that the PoA was handed
over by plaintiff No.2 to original defendant No.1 and that despite
his demands, never returned the same. The amendment sought
under Order 6 Rule 17 CPC was rightly refused by the first
appellate court. The plaintiffs tried to make out altogether a new
case which was not even the case of the plaintiffs earlier. This
conduct on the part of the plaintiffs also deserves serious
consideration and it creates serious doubts on the genuinity of
the PoA. In that view of the matter, the High Court committed a
serious error in drawing a statutory presumption as to the
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authenticity of the sale deeds. There may be a statutory
presumption as per Section 60 of the Registration Act where all
other requirements of execution of the sale deed, required to be
complied with under the Registration Act and the genuineness
of the PoA on the basis of which the sale deed was executed is
not doubted. [Para 9][161-G-H; 162-A-D]
1.5 As the PoA is not produced on record; the executant of
the PoA in favour of plaintiff No.2 has not stepped into the witness
box; there is a non-compliance of Section 33(1)(c) of the
Registration Act; and the plaintiff no.2 is claiming title on the
basis of the PoA alleged to have been executed by the original
owner which is not forthcoming and that plaintiff no.1 is claiming
the title on the basis of the sale deed dated 29.09.1968 executed
by plaintiff No.2 as a PoA holder of the original owner which is
not forthcoming, the trial court was justified and right in dismissing
the suit and refusing to pass a decree for a declaration of title in
favour of the plaintiffs. The same was rightly confirmed by the
first appellate court. The High Court committed a serious error
in decreeing the suit. The impugned judgment and order of the
High Court is unsustainable both, on law as well as on facts. The
impugned judgment and order passed by the High Court
decreeing the suit is hereby quashed and set aside and the
judgment and decree passed by the trial court, confirmed by the
first appellate Court, is restored. [Paras 10, 11][162-D-H]
Prem Singh and others v. Birbal and others, (2006) 5
SCC 353 : [2006] 1 Suppl. SCR 692; H. Siddiqui v. A.
Ramalingam (2011) 4 SCC 240 : [2011] 5 SCR 587;
Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558 : [2006]
1 Suppl. SCR 659; Sebastio Luis Fernandes v. K.V.P.
Shastri (2013) 15 SCC 161 : [2013] 11 SCR 1076; J.
Yashoda v. K. Shobha Rani (2007) 5 SCC 730 : [2007]
5 SCR 367; Rajni Tandon v. Dulal Ranjan Ghosh
Dastidar (2009) 14 SCC 782 : [2009] 11 SCR 686;
Amar Nath v. Gian Chand 2022 SCC OnLine SC 102
- referred to.
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA
(DEAD) THROUGH LRS. & OTHERS
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Case Law Reference
[2006] 1 Suppl. SCR 692
referred to
Para 3.3
[2011] 5 SCR 587
referred to
Para 3.7
[2006] 1 Suppl. SCR 659
referred to
Para 3.9
[2013] 11 SCR 1076
referred to
Para 3.9
[2007] 5 SCR 367
referred to
Para 3.10
[2009] 11 SCR 686
referred to
Para 3.12
Per B.V. NAGARATHNA, J. (Dissenting)
2.1 In the instant case, what is sought to be proved is title
by the sale deed and not the power of attorney as it is the sale
deed which conveys title and the sale deed has been executed in
accordance with the provisions of Registration Act, 1908, and
proved in accordance with Section 67 of Evidence Act. It cannot
be held that the sale made on behalf of the seller (original owner
of the suit land) to the buyer through the power of attorney is
vitiated as the power of attorney was not produced before the
Court. This is because even in the absence of the production of
the power of attorney, the contents of the sale deed and the
execution of the power of attorney as well as the sale deed have
been established by proving the sale deed in accordance with
the law. [Para 18][177-H; 178-A-B]
2.2 On a conjoint reading of the two documents, namely
sale deeds, it is established that the initial sale deed dated 03rd
September, 1968 by plaintiff No.2 is as a power of attorney holder
of the orignal owner, to himself as a buyer. The power of attorney
is dated 01st August, 1968, the details of which are referred to in
the said sale deed inasmuch as the power of attorney was executed
by the original owner before the Magistrate, East Pakistan, which
is evident on a reading of both the documents. Thereafter, plaintiff
No.2 executed a sale deed dated 29th October, 1968 in favour of
the plaintiff No.1 as the absolute owner of the suit schedule
property. Therefore, there is compliance of Section 33(1)(c) of
the Registration Act, 1908 inasmuch as the power of attorney
has been executed before the Magistrate, East Pakistan. [Para
21][180-B-D]
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2.3 As per Section 18 of the Registration Act, registration
of deed of attorney is optional. Further, Section 32 deals with the
categories of persons who can present documents for registration.
The following three categories of persons are mentioned therein:
(a) by some person executing or claiming under the same, or, in
the case of a copy of a decree or order, claiming under the decree
or order, or (b) by the representative or assign of such a person,
or (c) by the agent of such a person, representative or assign,
duly authorised by power-of- attorney executed and authenticated
in manner mentioned therein. Therefore, it is evident that plaintiff
no. 2, had the authority as per Section 32 (c) to present a document
for registration in his capacity as the attorney of the original owner
of the suit property. [Para 22][180-E-H]
2.4 Non-production of the power of attorney in the suit is
also not fatal to the case of the plaintiffs. Production of the original
power of attorney is not an indispensable requirement to establish
the validity of execution of a sale deed. It would therefore follow
that production of a power of attorney is not a necessary
requirement to prove a sale deed before a court of law executed
through a power of attorney. [Para 23][181-A; 183-F]
2.5 Section 67 of the Evidence Act deals with proof of
documents such as a sale deed as in the instant case. The plaintiff
No.1 has proved her right, title and interest in the land in question.
There is no contra evidence produced by the defendants so as to
defeat the validity of the sale deeds. The said documents speak
for themselves. Therefore, there is no substance in the
contentions of the appellants arising under the provisions of the
Registration Act, 1908. Thus, plaintiff No.1 has acquired title to
the land in question. Further, when a sale deed is executed on
the strength of deed of power of attorney, the non-production of
thedeed of power of attorney in the suit is not fatal to the case of
the plaintiff. [Para 24][183-G; 184-B-C]
2.6 The sale deed dated 03rd September, 1968 was
executed on the strength of the power of attorney which was
executed in conformity with Section 33 (1) (c) of the Registration
Act, 1908 because the power of attorney has been duly executed
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA
(DEAD) THROUGH LRS. & OTHERS
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before the Magistrate, East Pakistan as noted from the two sale
deeds. There is no contra evidence produced by defendants in
that regard. Since the requirements of execution of a sale deed
are duly complied with, and there is no reason to doubt the recitals
of the sale deed which has been proved in accordance with law, it
would follow that the statutory presumption under Section 60 of
the Registration Act could be invoked in the instant case. [Para
25][184-D-F]
2.7 It is trite that registration of a document is a solemn act
of parties and the recitals of a registered document are presumed
to be valid unless such a presumption is rebutted by strong
evidence to the contrary. This is because, the document speaks
for itself. [Para 26][184-F-G]
2.8 A registered document carries with it, by virtue of it
being registered, the presumption as to the authority of the person
executing it. In the present case, the trial court and the First
Appellate Court failed to treat the endorsement made by the
District Sub-Registrar on the body of the sale deed, as evidence
in respect of the authority of Plaintiff No. 2 to execute the sale
deed. This is to be considered in light of the fact that at no point
of time did the original owner dispute the execution of power of
attorney in favour of Plaintiff No. 2. [Para 28][185-G-H]
2.9 Prima-facie, the endorsement made on the sale deed
dated 03rd September, 1968, could be considered as
determinative evidence of the conveyance of title to the suit
property by its original owner, especially where the defendants
have not set up a case to establish any independent title over the
suit property. When such a presumption arises, the onus would
be on a person who challenges such presumption, to successfully
rebut it. As regards, the issue whether, the defendants have
rebutted the presumption of validity of the sale deed dated 03rd
September, 1968, the trial court and first appellate court have
concurrently found that the defendants do not have any title over
the suit land and against such finding the defendants have not
preferred an appeal. They have thus accepted this finding which
has attained finality. The original owner has not initiated any
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proceeding to dispute the execution of power of attorney in favour
of plaintiff No. 2. The order of the Munsiff records that by way of
a sale deed dated 03rd September, 1968, plaintiff No. 2 had
purchased the suit property and was paying municipal taxes as
the owner of the premises which finding is binding on the parties
herein as the same has not been upset by any Court of law. Original
defendant No. 1 in the present suit, was the plaintiff therein.
Notwithstanding the fact that the original defendant had become
aware of the sale deed dated 03rd September, 1968 and of the
power of attorney that formed the basis of such sale deed, no
steps were taken by the defendant to challenge plaintiff No. 2's
title over the suit property. It was only in the written statement
filed in the present suit that it was vaguely claimed that original
defendant no.1 was the title holder of the suit property and plaintiff
No. 2 was a tenant therein. This, without there being any legal
basis or evidence. In light of the said facts, it can be stated that
the defendant has not rebutted the presumption of validity of the
sale deed dated 03rd September, 1968. [Para 29][186-A-H; 187A]
2.10 There is no reason to disbelieve the recitals contained
in the registered sale deed dated 03rd September, 1968 merely
on the ground that the document conferring power of attorney in
favour of plaintiff no. 2 was not produced before the trial court. In
the instant case, the High Court was therefore right in holding
that when a document has been duly registered, there is a
presumption of correctness and it can be rebutted only by strong
evidence to the contrary. But the defendants have not led any
evidence in order to rebut the presumption as might be drawn
on the basis of the said endorsement on the body of the sale
deed dated 03.09.1968 accepting original plaintiff no.2 as the
attorney of the original owner. The same is a vital piece of evidence
which has been ignored by the trial court as well as the first
appellate court. The High Court is further right in holding that
original plaintiff no.2 was duly nominated and constituted as the
attorney of original owner of the suit land and on the strength of
the said power of attorney, plaintiff No.2 transferred land in favour
of himself. As the absolute owner, plaintiff No.2 sold the said land
to plaintiff No.1. Thus, plaintiff no.1 had every right to recover
the said suit land, description of which has been provided in the
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA
(DEAD) THROUGH LRS. & OTHERS
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Schedule (C) of the plaint by removing and demolishing all
obstructions fromthe defendants. The High Court was therefore
right in decreeing the suit. [Para 30][187-B-E]
Amar Nath vs. Gian Chand and Anr. 2022 SCC OnLine
SC 102; Rattan Singh and Ors. vs. Nirmal Gill and Ors.
AIR 2021 SC 899 - relied on.
Suraj Lamp and Industries vs. State of Haryana (2012)
1 SCC 656 : [2011] 11 SCR 848; Atal Chakrajvarty
vs. Sudhi Gopal Pandey (1969) 73 CWN 947; Ishwar
Dass Jain vs. Sohan Lal (2000) 1 SCC 434 : [1999] 5
Suppl. SCR 24; Chottey Lal vs. The Collector of
Moradabad A.I.R. 1922 PC 279; Prem Singh and Ors.
vs. Birbal and Ors. (2006) 5 SCC 353 : [2006] 1 Suppl.
SCR 692 - referred to.
Case Law Reference
[2011] 11 SCR 848
referred to
Para 18
A.I.R. 1922 PC 279
referred to
Para 18 (i), 26
[1999] 5 Suppl. SCR 24
referred to
Para 26
AIR 2021 SC 899
relied on
Para 27
[2006] 1 Suppl. SCR 692
referred to
Para 29
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2965
of 2022.
From the Judgment and Order dated 05.04.2018 of the High Court
of Tripura, Agartala in R.S.A. No. 01 of 2005.
Rana Mukherjee, Sr. Adv., Pijush K. Roy, Mrs. Kakali Roy, Rajan
K. Chourasia, Advs. for the Appellants.
Hrishikesh Baruah, Ms. Radhika Gupta, Advs. for the
Respondents.
The Judgments of the Court were delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 05.04.2018 passed by the High Court of Tripura at
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Agartala in Regular Second Appeal No. 01/2005, by which the High
Court has allowed the said appeal preferred by the original plaintiffs and
has decreed the suit by quashing and setting aside the concurrent findings
recorded by both the courts below, the original defendants have preferred
the present appeal.
2. The facts leading to the present appeal in a nutshell are as
under:
 That one Braja Mohan Dey was the owner and in possession of
'Schedule A' property. He was alleged to have taken a loan of Rs. 10,000/
- from his tenant, namely, Dhirendra Chandra Saha, original plaintiff
No.2. The original owner, Braja Mohan Dey went to East Pakistan. It
was alleged that he had executed a Power of Attorney (PoA) in East
Pakistan, ostensibly in favour of original plaintiff No.2 to enable
repayment of the alleged loan amount by sale of the subject land to
himself (original plaintiff No.2) as his PoA holder. That original plaintiff
No.2, on the basis of the alleged loan amount and PoA alleged to have
been executed by the original owner, executed in his favour sale deed
dated 3.9.1968 as PoA holder of the original owner. Thereafter original
plaintiff No.2, by virtue of the said PoA, transferred 'Schedule A' property
to his wife Gita Rani Saha (original plaintiff No.1) (now deceased) vide
sale deed dated 29.09.1968, allegedly for repayment of a sum of Rs.
20,000/- taken by him from his wife, out of which a sum of Rs. 10,000/
- was alleged to have been handed over to the original owner Braja
Mohan Dey.
2.1 That original plaintiff No.2 allegedly constructed a godown at
the rear end of the grocery shop in another part of 'Schedule A' property
('Schedule C' property). It was the case on behalf of the plaintiffs that
one Sarat Chandra Majumdar (original defendant No.1) tried to dispossess
the plaintiffs from the said 'Schedule C' property. However, on the other
hand, it was the case on behalf of the defendants that their predecessorin-interest held out that Sarat Chandra Majumdar was in possession of
the suit land for more than thirty years and was running a business from
the said property, while denying that the plaintiffs had acquired any right,
title or interest as claimed over the suit land. The original defendants
also claimed to be in peaceful possession of the property for over forty
years and it was their case that they were paying the municipal taxes
and land revenue and other statutory dues. The plaintiffs alleged that the
defendants had started a pucca construction on 'Schedule C' property
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA
(DEAD) THROUGH LRS. & OTHERS [M. R. SHAH, J.]
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and forcibly dispossessed them from the said property. Therefore, the
plaintiffs filed a Civil Suit being T.S. No. 201/1985 before the learned
trial Court for a declaration of title over the suit land and recovery of
khas possession from the defendants (appellants herein).
2.2 The said suit was resisted by the defendants by filing a written
statement denying all the allegations as well as their right of possession
in respect of the disputed suit property. At this stage, it is required to be
noted that though the original plaintiff No.2 claimed the ownership on
the basis of the sale deed dated 3.9.1968 executed by plaintiff No.1 in
his own favour on the basis of the alleged PoA executed by the original
owner, however, the same was not produced before the learned trial
Court and in the suit.
2.3 The learned trial Court vide its judgment and decree dated
11.09.1995 dismissed the suit and held that the plaintiffs were not entitled
to relief sought as no right, title or interest was established in favour of
plaintiff No.2, inter alia, for want of PoA for proper execution of the
sale deed in his favour. At this stage, it is required to be noted that issue
No.6 was, "have the plaintiffs proved their alleged right, title and interest
in the suit land?". The learned trial Court also held that the sale deeds in
favour of plaintiff No.2 and plaintiff No.1 respectively did not have the
endorsements of the Sub-Registrar that it was executed by the PoA of
Braja Mohan Dey (original owner) and further that even in an earlier
suit between plaintiff No.2 and Sarat Chandra Majumdar, the said PoA
was not produced. The learned trial Judge also came to the conclusion
that the provisions of Section 33(1)(c) of the Registration Act, 1908
have not been complied with, when according to the plaintiffs the alleged
PoA was executed at Kumilla, East Pakistan, now Bangladesh, which is
a foreign country.
2.4 Feeling aggrieved and dissatisfied with the judgment and decree
passed by the learned trial Court dismissing the suit, the original plaintiffs
preferred an appeal before the first appellate Court. In the appeal before
the first appellate Court, the plaintiffs filed an application under Order 6
Rule 17 CPC for amendment of the plaint in T.S. No. 201/1985. The
amendment sought for was to the effect that the missing PoA, i.e., the
fulcrum of the case was allegedly handed over by the plaintiffs to original
defendant No.1 and that despite demands, he never returned the same.
Vide order dated 31.01.1998, the first appellate Court rejected the prayer
for amendment of the plaint by observing that allowing the amendment
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at that stage would mean a remand of the suit for fresh trial. That after
framing the points for consideration, the first appellate Court dismissed
the appeal and confirmed the judgment and decree passed by the learned
trial Court dismissing the suit. The first appellate Court also found that
though plaintiff No.2 had acquired title over the suit land on the basis of
the sale deed executed by him in his favour on the basis of the PoA
alleged to have been executed by its true owner Braja Mohan Dey, but
failed to produce the same before the Court and as such in the absence
of PoA, genuinity of the sale deed dated 3.9.1968 cannot be presumed
to be correct and on the basis of that sale deed, subsequent sale deed
dated 29.09.1968 in favour of plaintiff No.1 by plaintiff No.2 also cannot
be treated as genuine.
2.5 Feeling aggrieved and dissatisfied with the judgment and order
passed by the first appellate Court dismissing the appeal and confirming
the judgment and decree passed by the learned trial Court dismissing the
suit, the plaintiffs preferred the second appeal before the High Court
under Section 100 CPC.
2.6 In the Second Appeal, the High Court, while admitting the
appeal, framed the following substantial question of law:
"Whether a sale deed executed by the attorney of the vendor can
be challenged by a third party only on the ground that the attorney
executive in the deed was not duly authorised by a power of
attorney."
 Subsequently, the High Court reframed the following substantial
questions of law:
"1) Whether the endorsement made on the sale deed No.1-10394
dated 3.9.1968 [Exbt.11] in respect of the power of attorney is
substantive evidence in respect of the power of attorney authorising
the plaintiff No.2 to sell the said land as demised in the sale deed
dated 3.9.1968?
2. Whether the defendants had fundamental onus to discharge in
respect that the power of attorney was not in existence or forged
and as such, the sale deed dated 3.9.68 cannot be treated as the
instrument of a valid transfer?"
2.7 By the impugned judgment and order, the High Court has
allowed the second appeal No. 01/2005 by setting aside the concurrent
MANIK MAJUMDER AND OTHERS v. DIPAK KUMAR SAHA
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findings recorded by the courts below by drawing a statutory presumption
in respect of existence of PoA by virtue of endorsement. While holding
so, the High Court has considered Section 33(1)(c) of the Registration
Act. Consequently, the High Court has decreed the suit and has directed
the appellants - original defendants to handover the vacant possession
of the suit land to the original plaintiffs.
2.8 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court allowing the second appeal and
quashing and setting aside the judgments and orders of the courts below
dismissing the suit and consequently decreeing the suit in favour of the
original plaintiffs, the original defendants have preferred the present
appeal.
3. Shri Rana Mukherjee, learned Senior Advocate has appeared
on behalf of the appellants - original defendants and Shri Hrishikesh
Baruah, learned Advocate has appeared on behalf of the original plaintiffs.
3.1 Learned counsel appearing on behalf of the appellants - original
defendants has vehemently submitted that the High Court has committed
a serious error in law by setting aside the concurrent findings of the
courts below in the second appeal. This is particularly when both the
courts below concurrently found that plaintiff No.2 is alleged to have
acquired title over the suit land on the basis of the sale deed dated 3.9.1968
executed by him in his own favour on the basis of the PoA executed by
its true owner Braja Mohan Dey, but failed to produce the same before
the Court and as such in the absence of PoA, genuinity of the sale deed
dated 3.9.1968 cannot be presumed to be correct. Further, on the basis
of the sale deed dated 3.9.1968, subsequent sale deed dated 29.09.1968
in favour of plaintiff No.1 by plaintiff No.2 also cannot be treated as
genuine. Therefore, the very execution of the sale deed dated 3.9.1968
is doubtful and it cannot be said that the same has been executed validly.
3.2 It is further submitted that the High Court, while drawing a
statutory presumption, has failed to consider that when execution of the
sale deed is doubtful and the cloud over the execution has not been
cleared, no statutory presumption could be drawn in respect of existence
or regularity of the PoA by virtue of an endorsement, when the PoA
which was allegedly executed in a foreign country could not be produced
and execution of the PoA has been done contrary to Section 33(1)(c) of
the Registration Act.
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3.3 It is submitted that the High Court has erroneously relied on
the judgment of this Court in the case of Prem Singh and others v.
Birbal and others, (2006) 5 SCC 353. Relying upon the aforesaid
decision, the High Court has seriously erred in holding that there is a
presumption that "a registered document is validly executed".
3.4 It is further submitted that despite the original plaintiffs having
sale deeds in their favour, plaintiff No.1 sought a declaration of the title.
It is submitted that assuming that the plaintiffs were dispossessed from
'Schedule C' property of which relief was claimed, then an application/
proceeding under Section 6 of the Specific Relief Act could have also
been filed, which was not done because the plaintiffs in the suit knew
that there was a cloud in their title to the suit land.
3.5 It is urged that even the original owner of the land, Braja
Mohan Dey, who was alleged to have executed the missing PoA, was
never made a party to the suit. He was neither a party to the suit nor
was examined as one of the witnesses by the trial Court in support of
the case of the plaintiffs. It is submitted that even the sale deeds executed
by virtue of the said PoA were not proved by examining the registering
authorities or by production of documents registering such sale.
3.6 Now so far as the effect of Section 33(1)(c) of the Registration
Act, it is submitted that insofar as the PoA was concerned, no evidence
was led to the effect that the same was in compliance of the provisions
of Section 33(1)(c) of the Registration Act. It is urged that as such the
trial Court has observed that the plaintiffs had not produced the PoA
before the Court and there was no explanation/averment made in the
plaint for such non-production. It is submitted that even the subsequent
conduct/attempt on the part of the plaintiffs seeking amendment of the
plaint before the first appellate Court deserves consideration. It is
submitted that having found that non-production of the PoA by the
plaintiffs would come in their way, and in fact had gone against them,
the plaintiffs tried to make out altogether a new case by averring that
the copy of the PoA was handed over to original defendant No.1 and
despite several requests, he never returned the same. It is submitted
that the same was never the case of the plaintiffs when the suit was
filed and there was no such amendment prayed in the plaint.
3.7 Learned counsel appearing on behalf of the appellants has
heavily relied upon the decision of this Court in the case of H. Siddiqui
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v. A. Ramalingam (2011) 4 SCC 240 (paras 13 & 15) in support of
his submission that once the issue of alleged PoA was raised, the High
Court ought not to have decided the second issue framed by it in that
case without deciding on the first issue, i.e., that of impact of nonproduction of the PoA and its existence thereof. It is submitted that in
the present case, the High Court ought to have decided the issue of nonproduction of PoA by the plaintiffs in the first instance and then would
have drawn the statutory presumption.
3.8 It is further submitted that in the present case, the learned trial
Court also specifically observed that no endorsement was made by the
Sub-Registrar on the documents in compliance with Section 26 and
Section 58 of the Registration Act. It is contended that it was neither
stated in the deed that the plaintiff has the PoA by which he was
empowered to execute the deed in his favour nor was an averment
made in the plaint to that effect. It is submitted that the evidence produced
by the plaintiffs, i.e., two sale deeds dated 3.9.1968 and 29.9.1968 based
on the purported PoA, has not been proved by production of official
records or through the Registrar being examined as a witness. It is urged
that the PoA is the fulcrum of the case on which the plaintiffs were
claiming their rights, the plaintiffs never produced in any form. It is further
urged that it was incumbent on the part of the plaintiffs to produce PoA
as the plaintiffs in the suit were having their rights, title or interest through
the PoA which is the basic document.
3.9 Learned counsel appearing on behalf of the appellants has
further submitted that Sections 101 to 103 of the Indian Evidence Act
provides that a party who avers the title must prove the title and that
such a party is not relieved of the onus. It is submitted that in the present
case even the plaintiffs had not discharged their initial burden of proving
the title. Reliance is placed upon the decision of this Court in the cases
of Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558; and Sebastio
Luis Fernandes v. K.V.P. Shastri (2013) 15 SCC 161.
3.10 It is further submitted that Section 65 of the Indian Evidence
Act provides for circumstances under which secondary evidence may
be given without filing primary evidence. It is submitted that in the present
case the plaintiffs have failed to prove the primary evidence, i.e., PoA
on the basis of which the secondary evidence, i.e., the sale deeds were
executed. Reliance is placed on the decision of this Court in the case of
J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730. It is submitted that
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therefore in the absence of the principal evidence (PoA), the significance
of the two sale deeds, produced by the plaintiffs is diluted.
3.11 It is further contended that in the impugned judgment and
order, the High Court while holding against the appellants and upsetting
the concurrent findings of the courts below, inter alia, has held that
there was a statutory presumption in favour of the plaintiffs insofar as
the PoA is concerned. It is submitted that the said finding is erroneous
inasmuch as the statutory presumption would not be available to the
plaintiffs and the documents in question since the document (PoA) itself
has not been produced before the courts below to ascertain whether the
document was in order or in compliance of Section 33(1)(c) of the
Registration Act.
3.12 Learned counsel appearing on behalf of the appellants has
also relied upon the decisions of this Court in the case of Rajni Tandon
v. Dulal Ranjan Ghosh Dastidar (2009) 14 SCC 782; and recent
decision of this Court in the case of Amar Nath v. Gian Chand 2022
SCC OnLine SC 102, in support of his submission on Section 33 (1)(c)
of the Registration Act.
3.13 Making the above submissions and relying upon the aforesaid
decisions, it is vehemently submitted that the High Court has erred in
allowing the second appeal and quashing and setting aside the concurrent
findings of the courts below and thereby decreeing the suit while
exercising the power under Section 100 CPC. Therefore, it is prayed to
allow the present appeal and set aside the impugned judgment and order
passed by the High Court and restore the judgment and decree passed
by the learned trial Court.
4. The present appeal is opposed by Shri Hrishikesh Baruah,
learned counsel appearing on behalf of the respondents - original
plaintiffs.
4.1 It is vehemently submitted that the land which is in possession
of defendant No.1 is founded on the title of plaintiff No.1 based on the
sale deed dated 3.9.1968 which has been executed on the basis of the
PoA in favour of plaintiff No.2. It is submitted that therefore the defendants
are not entitled in law as well as in equity to raise a dispute about the
existence of the same.
4.2 It is submitted that as such the original defendants tried to
take forceful possession of 'Schedule C' property by breaking the godown
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and taking away the goods. Plaintiff No.2 informed the concerned police
station and thereafter made a prayer before the Court of the SDM,
Sardar for drawing up proceedings under Section 144 Cr.P.C. On a police
enquiry report, proceedings under Section 144 Cr.P.C. were started.
During the proceedings, a prohibitory order was passed. The defendants
entered the possession of 'Schedule C' property. It is submitted that, in
fact, the learned Executive Magistrate directed the defendants to vacate
the 'Schedule C' property/land and handover the same to the plaintiffs.
However, in the revision petition filed by the defendants, the learned
revisional Court set aside the same on technical grounds. The plaintiffs
approached the High Court by way of revision petition. The High Court
disposed of the case by directing that the plaintiffs can initiate a fresh
case under Section 145 Cr.P.C. regarding the 'Schedule C' property. It
is submitted that thereafter the plaintiffs filed a petition under Section
145 Cr.P.C. However, on 27.09.1985, as the defendants started
construction of a pucca structure on 'Schedule C' property, the plaintiffs
were constrained to file the suit.
4.3 It is submitted that as such the High Court has rightly drawn
the statutory presumption in favour of the plaintiffs. It is submitted that
as observed and held by the High Court, the defendants have not led any
evidence to rebut the presumption. It is submitted that as there was an
endorsement in the sale deed and that it is a vital piece of evidence, the
High Court has not committed any error in drawing the statutory
presumption.
4.4 It is further submitted that Part VI of the Registration Act
deals with presenting documents for registration. Section 32 contemplates
that only those persons mentioned in clause (c) are entitled to present
documents for registration. In case the PoA holder himself executes the
sale deed, then for the purpose of registration he is considered to be a
person falling under Section 32(a) of the Registration Act. He is not
even required to produce the PoA (although in the present case the PoA
was produced and the requisite endorsement was made).