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

[2023] 4 S.C.R.

AMANIK MAJUMDER AND OTHERS

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 ofsale deed on the strength of deed of Power of Attorney – Non-production of the deed of power of attorney – Effect of, to the caseof plaintiff in the suit – Power of attorney (PoA) executed outsideCIndia – Presumption as to correctness of the PoA – On facts, PoAallegedly executed in East Pakistan by the original owner in favourof respondent No. 2 – Respondent No. 2 thereafter executed twosale deeds transferring the suit property firstly in his own favourand then in favour of his wife – Respondents then filed suit forDdeclaration of title over the subject land and recovery of khaspossession from the appellants – Respondent no. 2 claimed hisownership on the basis of sale deed executed by the respondent no.1 in his own favour on the basis of PoA executed by the originalowner, however, the same PoA not produced before the trial court –Appellant’s case that they are the owner of the part of the suitEproperty and have been in possession for more than 40 years –Trial court dismissed the suit since no right, title or interest wasestablished in favour of respondent No.2 for want of PoA for properexecution of the sale deed in his favour; and that the provisions ofs. 33(1)(c) not complied with – First appellate court upheld theFsame – However, the High Court allowed the Second Appeal bydrawing presumption u/s. 60 in respect of PoA by virtue ofendorsement – High Court directed the appellants to handover thevacant possession of the suit land to the respondent – On appeal,held: In view of the difference of opinion, the matter referred to thelarger bench – Reference to larger Bench – Power of attorney.G

Referring the matter to larger Bench, the Court

Per M.R. SHAH, J.

HELD: 1.1 When the plaintiffs claimed title on the basis ofthe aforesaid two sale deeds dated 2.9.1968 and 29.09.1968, itHwas for the plaintiffs to prove even the execution of the sale deeds.

The defendants were not required to challenge the sale deeds inthe suit filed by the plaintiffs, who prayed for decree for adeclaration of title in their favour. When plaintiff No.2 claimedtitle on the basis of the PoA executed by the original owner andthereafter executed the sale deed in favour of plaintiff No.1 asPoA of the original owner, the conditions provided under Section33(1)(c) of the Registration Act are required to be strictly compliedwith. [Para 6][158-G-H; 159-A]

1.2 As per Section 32 of the Registration Act, everydocument to be registered under the Registration Act shall bepresented at the proper registration office by some personexecuting or claiming under the same, or, by the agent of such aperson, representative or assign, duly authorised by PoAexecuted and authenticated in the manner mentioned in Section33(1)(c) of the Registration Act. Section 33 of the RegistrationAct provides that for the purposes of Section 32, only those powerof attorneys shall be recognised as are mentioned in Section33(1). As per Section 33(1)(c) of the Act, if the principal at thetime of execution of the PoA does not reside in India, PoAexecuted before and authenticated by Notary Public, or anyCourt, Judge, Magistrate, Indian Consul or Vice-Consul, orrepresentative of the Central Government shall be valid. In theinstant case, the requirement of Section 33(1)(c) of the Act hasnot been satisfied at all. Section 32 of the Act is to be read alongwith Section 33(1)(c) of the Registration Act. Only in case wherethe execution of the PoA is as per Section 32 read with Section33(1)(c) of the Act, there shall be statutory presumption underSection 60 and/or under the provisions of the Registration Act.Therefore, the High Court committed grave error in drawingthe statutory presumption in favour of the plaintiffs and moreparticularly with respect to alleged PoA alleged to have beenexecuted by the original owner in favour of plaintiff No.2. As such,there were concurrent findings recorded by both the courts belowon non-compliance and/or non-fulfilling the conditions mentionedin Section 33(1)(c) of the Registration Act. By drawing thestatutory presumption and without properly appreciating and/orconsidering the fact that there is non-compliance of Section33(1)(c) of the Registration Act there cannot be any statutory

Apresumption, the High Court has set aside the concurrentfindings recorded by both the courts below, in exercise of powersunder Section 100 CPC. [Para 7][160-F-H; 161-A-D]

1.3 Even the conduct on the part of the plaintiffs, moreparticularly on the part of plaintiff No.2, executing the secondBsale deed in favour of plaintiff No.1-his own wife as PoA oforiginal land owner deserves serious consideration. Evenaccording to the plaintiffs, on the basis of the PoA alleged to havebeen executed by the original land owner, plaintiff No.2 executedthe registered sale deed in his own favour dated 3.9.1968. If thatCbe so, in that case, there was no reason for him to execute thesubsequent sale deed in favour of plaintiff No.1-his own wife as aPoA of the original land owner. Once he became the owner onthe basis of registered sale deed dated 3.9.1968, which wasexecuted by him in his own name as PoA of the original owner,he could have executed the sale deed in favour of plaintiff No.1Das the owner and not as PoA of the original owner. [Para 8][161-E-G]1.4 Another conduct on the part of the plaintiffs submittingthe application to amend the plaint under Order 6 Rule 17 CPCsubmitted before the first appellate court also creates doubtsEabout the genuinity of the PoA. It was never the case on behalf ofthe plaintiffs before the trial court and in the suit that the PoAwas handed over by the plaintiffs to original defendant No.1 andthat despite his demands he never returned the same. Havingfound and realised that the non-production of the PoA had goneFagainst them, subsequently, before the first appellate court, theplaintiffs sought to make out case that the PoA was handedover by plaintiff No.2 to original defendant No.1 and that despitehis demands, never returned the same. The amendment soughtunder Order 6 Rule 17 CPC was rightly refused by the firstappellate court. The plaintiffs tried to make out altogether newGcase which was not even the case of the plaintiffs earlier. Thisconduct on the part of the plaintiffs also deserves seriousconsideration and it creates serious doubts on the genuinity ofthe PoA. In that view of the matter, the High Court committed aserious error in drawing statutory presumption as to theH

authenticity of the sale deeds. There may be statutorypresumption as per Section 60 of the Registration Act where allother requirements of execution of the sale deed, required to becomplied with under the Registration Act and the genuinenessof the PoA on the basis of which the sale deed was executed isnot doubted. [Para 9][161-G-H; 162-A-D]

1.5 As the PoA is not produced on record; the executant ofthe PoA in favour of plaintiff No.2 has not stepped into the witnessbox; there is non-compliance of Section 33(1)(c) of theRegistration Act; and the plaintiff no.2 is claiming title on thebasis of the PoA alleged to have been executed by the originalowner which is not forthcoming and that plaintiff no.1 is claimingthe title on the basis of the sale deed dated 29.09.1968 executedby plaintiff No.2 as PoA holder of the original owner which isnot forthcoming, the trial court was justified and right in dismissingthe suit and refusing to pass decree for declaration of title infavour of the plaintiffs. The same was rightly confirmed by thefirst appellate court. The High Court committed serious errorin decreeing the suit. The impugned judgment and order of theHigh Court is unsustainable both, on law as well as on facts. Theimpugned judgment and order passed by the High Courtdecreeing the suit is hereby quashed and set aside and thejudgment and decree passed by the trial court, confirmed by thefirst appellate Court, is restored. [Paras 10, 11][162-D-H]

Prem Singh and others v. Birbal and others, (2006) 5SCC 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 GhoshDastidar (2009) 14 SCC 782 : [2009] 11 SCR 686;Amar Nath v. Gian Chand 2022 SCC OnLine SC 102– referred to.

Per B.V. NAGARATHNA, J. (Dissenting)C

2.1 In the instant case, what is sought to be proved is titleby the sale deed and not the power of attorney as it is the saledeed which conveys title and the sale deed has been executed inaccordance with the provisions of Registration Act, 1908, andproved in accordance with Section 67 of Evidence Act. It cannotDbe held that the sale made on behalf of the seller (original ownerof the suit land) to the buyer through the power of attorney isvitiated as the power of attorney was not produced before theCourt. This is because even in the absence of the production ofthe power of attorney, the contents of the sale deed and theexecution of the power of attorney as well as the sale deed haveEbeen established by proving the sale deed in accordance withthe law. [Para 18][177-H; 178-A-B]2.2 On conjoint reading of the two documents, namelysale deeds, it is established that the initial sale deed dated 03rdSeptember, 1968 by plaintiff No.2 is as power of attorney holderFof the orignal owner, to himself as buyer. The power of attorneyis dated 01st August, 1968, the details of which are referred to inthe said sale deed inasmuch as the power of attorney was executedby the original owner before the Magistrate, East Pakistan, whichis evident on reading of both the documents. Thereafter, plaintiffGNo.2 executed sale deed dated 29th October, 1968 in favour ofthe plaintiff No.1 as the absolute owner of the suit scheduleproperty. Therefore, there is compliance of Section 33(1)(c) ofthe Registration Act, 1908 inasmuch as the power of attorneyhas been executed before the Magistrate, East Pakistan. [Para21][180-B-D]H

2.3 As per Section 18 of the Registration Act, registrationof deed of attorney is optional. Further, Section 32 deals with thecategories 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, inthe case of copy of decree or order, claiming under the decreeor order, or (b) by the representative or assign of such person,or (c) by the agent of such person, representative or assign,duly authorised by power-of- attorney executed and authenticatedin manner mentioned therein. Therefore, it is evident that plaintiffno. 2, had the authority as per Section 32 (c) to present documentfor registration in his capacity as the attorney of the original ownerof the suit property. [Para 22][180-E-H]

2.4 Non-production of the power of attorney in the suit isalso not fatal to the case of the plaintiffs. Production of the originalpower of attorney is not an indispensable requirement to establishthe validity of execution of sale deed. It would therefore followthat production of power of attorney is not necessaryrequirement to prove sale deed before court of law executedthrough power of attorney. [Para 23][181-A; 183-F]

2.5 Section 67 of the Evidence Act deals with proof ofdocuments such as sale deed as in the instant case. The plaintiffNo.1 has proved her right, title and interest in the land in question.There is no contra evidence produced by the defendants so as todefeat the validity of the sale deeds. The said documents speakfor themselves. Therefore, there is no substance in thecontentions of the appellants arising under the provisions of theRegistration Act, 1908. Thus, plaintiff No.1 has acquired title tothe land in question. Further, when sale deed is executed onthe strength of deed of power of attorney, the non-production ofthedeed of power of attorney in the suit is not fatal to the case ofthe plaintiff. [Para 24][183-G; 184-B-C]

2.6 The sale deed dated 03rd September, 1968 wasexecuted on the strength of the power of attorney which wasexecuted in conformity with Section 33 (1) (c) of the RegistrationAct, 1908 because the power of attorney has been duly executed

Abefore the Magistrate, East Pakistan as noted from the two saledeeds. There is no contra evidence produced by defendants inthat regard. Since the requirements of execution of sale deedare duly complied with, and there is no reason to doubt the recitalsof the sale deed which has been proved in accordance with law, itwould follow that the statutory presumption under Section 60 ofBthe Registration Act could be invoked in the instant case. [Para25][184-D-F]

2.7 It is trite that registration of document is solemn actof parties and the recitals of registered document are presumedto be valid unless such presumption is rebutted by strongCevidence to the contrary. This is because, the document speaksfor itself. [Para 26][184-F-G]

2.8 registered document carries with it, by virtue of itbeing registered, the presumption as to the authority of the personexecuting it. In the present case, the trial court and the FirstDAppellate Court failed to treat the endorsement made by theDistrict Sub-Registrar on the body of the sale deed, as evidencein respect of the authority of Plaintiff No. 2 to execute the saledeed. This is to be considered in light of the fact that at no pointof time did the original owner dispute the execution of power ofEattorney in favour of Plaintiff No. 2. [Para 28][185-G-H]

2.9 Prima-facie, the endorsement made on the sale deeddated 03rd September, 1968, could be considered asdeterminative evidence of the conveyance of title to the suitproperty by its original owner, especially where the defendantsFhave not set up case to establish any independent title over thesuit property. When such presumption arises, the onus wouldbe on person who challenges such presumption, to successfullyrebut it. As regards, the issue whether, the defendants haverebutted the presumption of validity of the sale deed dated 03rdGSeptember, 1968, the trial court and first appellate court haveconcurrently found that the defendants do not have any title overthe suit land and against such finding the defendants have notpreferred an appeal. They have thus accepted this finding whichhas attained finality. The original owner has not initiated any

proceeding to dispute the execution of power of attorney in favourof plaintiff No. 2. The order of the Munsiff records that by way ofa sale deed dated 03rd September, 1968, plaintiff No. 2 hadpurchased the suit property and was paying municipal taxes asthe owner of the premises which finding is binding on the partiesherein as the same has not been upset by any Court of law. Originaldefendant No. 1 in the present suit, was the plaintiff therein.Notwithstanding the fact that the original defendant had becomeaware of the sale deed dated 03rd September, 1968 and of thepower of attorney that formed the basis of such sale deed, nosteps were taken by the defendant to challenge plaintiff No. 2’stitle over the suit property. It was only in the written statementfiled in the present suit that it was vaguely claimed that originaldefendant no.1 was the title holder of the suit property and plaintiffNo. 2 was tenant therein. This, without there being any legalbasis or evidence. In light of the said facts, it can be stated thatthe defendant has not rebutted the presumption of validity of thesale deed dated 03rd September, 1968. [Para 29][186-A-H; 187-A]2.10 There is no reason to disbelieve the recitals containedin the registered sale deed dated 03rd September, 1968 merelyon the ground that the document conferring power of attorney infavour of plaintiff no. 2 was not produced before the trial court. Inthe instant case, the High Court was therefore right in holdingthat when document has been duly registered, there is apresumption of correctness and it can be rebutted only by strongevidence to the contrary. But the defendants have not led anyevidence in order to rebut the presumption as might be drawnon the basis of the said endorsement on the body of the saledeed dated 03.09.1968 accepting original plaintiff no.2 as theattorney of the original owner. The same is vital piece of evidencewhich has been ignored by the trial court as well as the firstappellate court. The High Court is further right in holding thatoriginal plaintiff no.2 was duly nominated and constituted as theattorney of original owner of the suit land and on the strength ofthe said power of attorney, plaintiff No.2 transferred land in favourof himself. As the absolute owner, plaintiff No.2 sold the said landto plaintiff No.1. Thus, plaintiff no.1 had every right to recoverthe said suit land, description of which has been provided in the

ABC

ASchedule (C) of the plaint by removing and demolishing allobstructions fromthe defendants. The High Court was thereforeright in decreeing the suit. [Para 30][187-B-E]

Amar Nath vs. Gian Chand and Anr. 2022 SCC OnLineSC 102; Rattan Singh and Ors. vs. Nirmal Gill and Ors.BAIR 2021 SC 899 – relied on.

Suraj Lamp and Industries vs. State of Haryana (2012)1 SCC 656 : [2011] 11 SCR 848; Atal Chakrajvartyvs. Sudhi Gopal Pandey (1969) 73 CWN 947; IshwarDass Jain vs. Sohan Lal (2000) 1 SCC 434 : [1999] 5CSuppl. SCR 24; Chottey Lal vs. The Collector ofMoradabad 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

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2965of 2022.

From the Judgment and Order dated 05.04.2018 of the High CourtFof Tripura, Agartala in R.S.A. No. 01 of 2005.

Rana Mukherjee, Sr. Adv., Pijush K. Roy, Mrs. Kakali Roy, RajanK. Chourasia, Advs. for the Appellants.

Hrishikesh Baruah, Ms. Radhika Gupta, Advs. for theRespondents.G

The Judgments of the Court were delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 05.04.2018 passed by the High Court of Tripura atH

Agartala in Regular Second Appeal No. 01/2005, by which the HighCourt has allowed the said appeal preferred by the original plaintiffs andhas decreed the suit by quashing and setting aside the concurrent findingsrecorded by both the courts below, the original defendants have preferredthe present appeal.

2. The facts leading to the present appeal in nutshell are asunder:

That one Braja Mohan Dey was the owner and in possession of‘Schedule A’ property. He was alleged to have taken loan of Rs. 10,000/- from his tenant, namely, Dhirendra Chandra Saha, original plaintiffNo.2. The original owner, Braja Mohan Dey went to East Pakistan. Itwas alleged that he had executed Power of Attorney (PoA) in EastPakistan, ostensibly in favour of original plaintiff No.2 to enablerepayment of the alleged loan amount by sale of the subject land tohimself (original plaintiff No.2) as his PoA holder. That original plaintiffNo.2, on the basis of the alleged loan amount and PoA alleged to havebeen executed by the original owner, executed in his favour sale deeddated 3.9.1968 as PoA holder of the original owner. Thereafter originalplaintiff No.2, by virtue of the said PoA, transferred ‘Schedule A’ propertyto his wife Gita Rani Saha (original plaintiff No.1) (now deceased) videsale deed dated 29.09.1968, allegedly for repayment of sum of Rs.20,000/- taken by him from his wife, out of which sum of Rs. 10,000/- was alleged to have been handed over to the original owner BrajaMohan Dey.2.1 That original plaintiff No.2 allegedly constructed godown atthe 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 thatone Sarat Chandra Majumdar (original defendant No.1) tried to dispossessthe plaintiffs from the said ‘Schedule C’ property. However, on the otherhand, it was the case on behalf of the defendants that their predecessor-in-interest held out that Sarat Chandra Majumdar was in possession ofthe suit land for more than thirty years and was running business fromthe said property, while denying that the plaintiffs had acquired any right,title or interest as claimed over the suit land. The original defendantsalso claimed to be in peaceful possession of the property for over fortyyears and it was their case that they were paying the municipal taxesand land revenue and other statutory dues. The plaintiffs alleged that thedefendants had started pucca construction on ‘Schedule C’ property

Aand forcibly dispossessed them from the said property. Therefore, theplaintiffs filed Civil Suit being T.S. No. 201/1985 before the learnedtrial Court for declaration of title over the suit land and recovery ofkhas possession from the defendants (appellants herein).

2.2 The said suit was resisted by the defendants by filing writtenBstatement denying all the allegations as well as their right of possessionin respect of the disputed suit property. At this stage, it is required to benoted that though the original plaintiff No.2 claimed the ownership onthe basis of the sale deed dated 3.9.1968 executed by plaintiff No.1 inhis own favour on the basis of the alleged PoA executed by the originalowner, however, the same was not produced before the learned trialCCourt and in the suit.

2.3 The learned trial Court vide its judgment and decree dated11.09.1995 dismissed the suit and held that the plaintiffs were not entitledto relief sought as no right, title or interest was established in favour ofplaintiff No.2, inter alia, for want of PoA for proper execution of theDsale deed in his favour. At this stage, it is required to be noted that issueNo.6 was, “have the plaintiffs proved their alleged right, title and interestin the suit land?”. The learned trial Court also held that the sale deeds infavour of plaintiff No.2 and plaintiff No.1 respectively did not have theendorsements of the Sub-Registrar that it was executed by the PoA ofEBraja Mohan Dey (original owner) and further that even in an earliersuit between plaintiff No.2 and Sarat Chandra Majumdar, the said PoAwas not produced. The learned trial Judge also came to the conclusionthat the provisions of Section 33(1)(c) of the Registration Act, 1908have not been complied with, when according to the plaintiffs the allegedPoA was executed at Kumilla, East Pakistan, now Bangladesh, which isFa foreign country.

2.4 Feeling aggrieved and dissatisfied with the judgment and decreepassed by the learned trial Court dismissing the suit, the original plaintiffspreferred an appeal before the first appellate Court. In the appeal beforethe first appellate Court, the plaintiffs filed an application under Order 6GRule 17 CPC for amendment of the plaint in T.S. No. 201/1985. Theamendment sought for was to the effect that the missing PoA, i.e., thefulcrum of the case was allegedly handed over by the plaintiffs to originaldefendant No.1 and that despite demands, he never returned the same.Vide order dated 31.01.1998, the first appellate Court rejected the prayerHfor amendment of the plaint by observing that allowing the amendmentat that stage would mean remand of the suit for fresh trial. That afterframing the points for consideration, the first appellate Court dismissedthe appeal and confirmed the judgment and decree passed by the learnedtrial Court dismissing the suit. The first appellate Court also found thatthough plaintiff No.2 had acquired title over the suit land on the basis ofthe sale deed executed by him in his favour on the basis of the PoAalleged to have been executed by its true owner Braja Mohan Dey, butfailed to produce the same before the Court and as such in the absenceof PoA, genuinity of the sale deed dated 3.9.1968 cannot be presumedto be correct and on the basis of that sale deed, subsequent sale deeddated 29.09.1968 in favour of plaintiff No.1 by plaintiff No.2 also cannotbe treated as genuine.

2.5 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the first appellate Court dismissing the appeal and confirmingthe judgment and decree passed by the learned trial Court dismissing thesuit, the plaintiffs preferred the second appeal before the High Courtunder Section 100 CPC.

2.6 In the Second Appeal, the High Court, while admitting theappeal, framed the following substantial question of law:

“Whether sale deed executed by the attorney of the vendor canbe challenged by third party only on the ground that the attorneyexecutive in the deed was not duly authorised by power ofattorney.”

Subsequently, the High Court reframed the following substantialquestions of law:

“1) Whether the endorsement made on the sale deed No.1-10394dated 3.9.1968 [Exbt.11] in respect of the power of attorney issubstantive evidence in respect of the power of attorney authorisingthe plaintiff No.2 to sell the said land as demised in the sale deeddated 3.9.1968?

2. Whether the defendants had fundamental onus to discharge inrespect that the power of attorney was not in existence or forgedand as such, the sale deed dated 3.9.68 cannot be treated as theinstrument of valid transfer?”

2.7 By the impugned judgment and order, the High Court hasallowed the second appeal No. 01/2005 by setting aside the concurrent

Afindings recorded by the courts below by drawing statutory presumptionin respect of existence of PoA by virtue of endorsement. While holdingso, the High Court has considered Section 33(1)(c) of the RegistrationAct. Consequently, the High Court has decreed the suit and has directedthe appellants – original defendants to handover the vacant possessionof the suit land to the original plaintiffs.B

2.8 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court allowing the second appeal andquashing and setting aside the judgments and orders of the courts belowdismissing the suit and consequently decreeing the suit in favour of theoriginal plaintiffs, the original defendants have preferred the presentCappeal.

3. Shri Rana Mukherjee, learned Senior Advocate has appearedon behalf of the appellants – original defendants and Shri HrishikeshBaruah, learned Advocate has appeared on behalf of the original plaintiffs.

D3.1 Learned counsel appearing on behalf of the appellants – originaldefendants has vehemently submitted that the High Court has committeda serious error in law by setting aside the concurrent findings of thecourts below in the second appeal. This is particularly when both thecourts below concurrently found that plaintiff No.2 is alleged to haveacquired title over the suit land on the basis of the sale deed dated 3.9.1968Eexecuted by him in his own favour on the basis of the PoA executed byits true owner Braja Mohan Dey, but failed to produce the same beforethe Court and as such in the absence of PoA, genuinity of the sale deeddated 3.9.1968 cannot be presumed to be correct. Further, on the basisof the sale deed dated 3.9.1968, subsequent sale deed dated 29.09.1968Fin favour of plaintiff No.1 by plaintiff No.2 also cannot be treated asgenuine. Therefore, the very execution of the sale deed dated 3.9.1968is 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 astatutory presumption, has failed to consider that when execution of thesale deed is doubtful and the cloud over the execution has not beenGcleared, no statutory presumption could be drawn in respect of existenceor regularity of the PoA by virtue of an endorsement, when the PoAwhich was allegedly executed in foreign country could not be producedand execution of the PoA has been done contrary to Section 33(1)(c) ofthe Registration Act.H

3.3 It is submitted that the High Court has erroneously relied onthe judgment of this Court in the case of Prem Singh and others v.Birbal and others, (2006) 5 SCC 353. Relying upon the aforesaiddecision, the High Court has seriously erred in holding that there is apresumption that “a registered document is validly executed”.

3.4 It is further submitted that despite the original plaintiffs havingsale deeds in their favour, plaintiff No.1 sought 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 alsobeen filed, which was not done because the plaintiffs in the suit knewthat there was cloud in their title to the suit land.

3.5 It is urged that even the original owner of the land, BrajaMohan Dey, who was alleged to have executed the missing PoA, wasnever made party to the suit. He was neither party to the suit norwas examined as one of the witnesses by the trial Court in support ofthe case of the plaintiffs. It is submitted that even the sale deeds executedby virtue of the said PoA were not proved by examining the registeringauthorities or by production of documents registering such sale.

3.6 Now so far as the effect of Section 33(1)(c) of the RegistrationAct, it is submitted that insofar as the PoA was concerned, no evidencewas led to the effect that the same was in compliance of the provisionsof Section 33(1)(c) of the Registration Act. It is urged that as such thetrial Court has observed that the plaintiffs had not produced the PoAbefore the Court and there was no explanation/averment made in theplaint for such non-production. It is submitted that even the subsequentconduct/attempt on the part of the plaintiffs seeking amendment of theplaint before the first appellate Court deserves consideration. It issubmitted that having found that non-production of the PoA by theplaintiffs would come in their way, and in fact had gone against them,the plaintiffs tried to make out altogether new case by averring thatthe copy of the PoA was handed over to original defendant No.1 anddespite several requests, he never returned the same. It is submittedthat the same was never the case of the plaintiffs when the suit wasfiled and there was no such amendment prayed in the plaint.

3.7 Learned counsel appearing on behalf of the appellants hasheavily relied upon the decision of this Court in the case of H. Siddiqui

Av. A. Ramalingam (2011) 4 SCC 240 (paras 13 & 15) in support ofhis submission that once the issue of alleged PoA was raised, the HighCourt ought not to have decided the second issue framed by it in thatcase without deciding on the first issue, i.e., that of impact of non-production of the PoA and its existence thereof. It is submitted that inthe present case, the High Court ought to have decided the issue of non-Bproduction of PoA by the plaintiffs in the first instance and then wouldhave drawn the statutory presumption.

3.8 It is further submitted that in the present case, the learned trialCourt also specifically observed that no endorsement was made by theSub-Registrar on the documents in compliance with Section 26 andCSection 58 of the Registration Act. It is contended that it was neitherstated in the deed that the plaintiff has the PoA by which he wasempowered to execute the deed in his favour nor was an avermentmade in the plaint to that effect. It is submitted that the evidence producedby the plaintiffs, i.e., two sale deeds dated 3.9.1968 and 29.9.1968 basedDon the purported PoA, has not been proved by production of officialrecords or through the Registrar being examined as witness. It is urgedthat the PoA is the fulcrum of the case on which the plaintiffs wereclaiming their rights, the plaintiffs never produced in any form. It is furtherurged that it was incumbent on the part of the plaintiffs to produce PoAas the plaintiffs in the suit were having their rights, title or interest throughEthe PoA which is the basic document.

3.9 Learned counsel appearing on behalf of the appellants hasfurther submitted that Sections 101 to 103 of the Indian Evidence Actprovides that party who avers the title must prove the title and thatsuch party is not relieved of the onus. It is submitted that in the presentFcase even the plaintiffs had not discharged their initial burden of provingthe title. Reliance is placed upon the decision of this Court in the casesof Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558; and SebastioLuis Fernandes v. K.V.P. Shastri (2013) 15 SCC 161.3.10 It is further submitted that Section 65 of the Indian EvidenceGAct provides for circumstances under which secondary evidence maybe given without filing primary evidence. It is submitted that in the presentcase the plaintiffs have failed to prove the primary evidence, i.e., PoAon the basis of which the secondary evidence, i.e., the sale deeds wereexecuted. Reliance is placed on the decision of this Court in the case ofHJ. Yashoda v. K. Shobha Rani (2007) 5 SCC 730. It is submitted that

therefore in the absence of the principal evidence (PoA), the significanceof the two sale deeds, produced by the plaintiffs is diluted.

3.11 It is further contended that in the impugned judgment andorder, the High Court while holding against the appellants and upsettingthe concurrent findings of the courts below, inter alia, has held thatthere was statutory presumption in favour of the plaintiffs insofar asthe PoA is concerned. It is submitted that the said finding is erroneousinasmuch as the statutory presumption would not be available to theplaintiffs and the documents in question since the document (PoA) itselfhas not been produced before the courts below to ascertain whether thedocument was in order or in compliance of Section 33(1)(c) of theRegistration Act.

3.12 Learned counsel appearing on behalf of the appellants hasalso relied upon the decisions of this Court in the case of Rajni Tandonv. Dulal Ranjan Ghosh Dastidar (2009) 14 SCC 782; and recentdecision of this Court in the case of Amar Nath v. Gian Chand 2022SCC 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 aforesaiddecisions, it is vehemently submitted that the High Court has erred inallowing the second appeal and quashing and setting aside the concurrentfindings of the courts below and thereby decreeing the suit whileexercising the power under Section 100 CPC. Therefore, it is prayed toallow the present appeal and set aside the impugned judgment and orderpassed by the High Court and restore the judgment and decree passedby the learned trial Court.

4. The present appeal is opposed by Shri Hrishikesh Baruah,learned counsel appearing on behalf of the respondents – originalplaintiffs.

4.1 It is vehemently submitted that the land which is in possessionof defendant No.1 is founded on the title of plaintiff No.1 based on thesale deed dated 3.9.1968 which has been executed on the basis of thePoA in favour of plaintiff No.2. It is submitted that therefore the defendantsare not entitled in law as well as in equity to raise dispute about theexistence of the same.

4.2 It is submitted that as such the original defendants tried totake forceful possession of ‘Schedule C’ property by breaking the godown

Aand taking away the goods. Plaintiff No.2 informed the concerned policestation and thereafter made prayer before the Court of the SDM,Sardar for drawing up proceedings under Section 144 Cr.P.C. On policeenquiry report, proceedings under Section 144 Cr.P.C. were started.During the proceedings, prohibitory order was passed. The defendantsentered the possession of ’Schedule C’ property. It is submitted that, inBfact, the learned Executive Magistrate directed the defendants to vacatethe ‘Schedule C’ property/land and handover the same to the plaintiffs.However, in the revision petition filed by the defendants, the learnedrevisional Court set aside the same on technical grounds. The plaintiffsapproached the High Court by way of revision petition. The High CourtCdisposed of the case by directing that the plaintiffs can initiate freshcase under Section 145 Cr.P.C. regarding the ‘Schedule C’ property. Itis submitted that thereafter the plaintiffs filed petition under Section145 Cr.P.C. However, on 27.09.1985, as the defendants startedconstruction of pucca structure on ‘Schedule C’ property, the plaintiffswere constrained to file the suit.D4.3 It is submitted that as such the High Court has rightly drawnthe statutory presumption in favour of the plaintiffs. It is submitted thatas observed and held by the High Court, the defendants have not led anyevidence to rebut the presumption. It is submitted that as there was anendorsement in the sale deed and that it is vital piece of evidence, theEHigh Court has not committed any error in drawing the statutorypresumption.

4.4 It is further submitted that Part VI of the Registration Actdeals with presenting documents for registration. Section 32 contemplatesthat only those persons mentioned in clause (c) are entitled to presentFdocuments for registration. In case the PoA holder himself executes thesale deed, then for the purpose of registration he is considered to be aperson falling under Section 32(a) of the Registration Act. He is noteven required to produce the PoA (although in the present case the PoAwas produced and the requisite endorsement was made). It is submittedGthat sub-clause (c) contemplates presentation of document forregistration by PoA holder. It is submitted that Section 33 furtherprovides as to which PoA holders will be recognised for the purpose ofSection 32. Sub-clause (c) provides for case where the principal is notresiding in India. It is submitted that in that case, the PoA executed hasto be authenticated by the concerned persons mentioned therein. Further,H

the plaintiffs have proved execution of the PoA by the original owner byexamining PW1. It is contended therefore there is no dispute that thesteps mentioned in Section 33(1)(c) of the Registration Act were compliedwith.

4.5 It is further submitted that Section 34 of the Registration Actcontemplates an enquiry which relates to various aspects mentioned insub-clause (3) including (i) enquiring into the fact as to whether suchdocument was executed by the persons by whom it purports to havebeen executed; (ii) satisfying himself as to the identity of the personsappearing before him; and (iii) in case of any person appearing as arepresentative assign or agent satisfying himself as to the right of suchperson so to appear. That on completion of enquiry as contemplatedunder the Registration Act, the registering authority may direct registrationand issuance of certificate in terms of Section 60(1) and 60(2) of theAct. Therefore by virtue of Section 60(2) of the Registration Act, thereis statutory presumption which arises to the effect that the documenthas been registered in the manner provided by the Act, which meansthat it has been registered after due compliance of the enquirycontemplated under Section 33(1) (c) and 36 of the Registration Act.

4.6 It is submitted that in the present case plaintiff No.2 hadexecuted the first sale deed dated 3.9.1968 which is registered document.That on the foundation of the said sale deed, the second sale deed dated29.09.1968 had been executed in favour of plaintiff No.1 and thereforethe owner of the property is plaintiff No.1. It is contended that on thefoundation of the aforesaid registered document, the title has to flow.Otherwise, it would lead to situation wherein registered documentwill have no effect. That in the present case there is no challenge to thesale deeds. Therefore, the legal effect of the execution of the sale deedshas been proved.

4.7 It is submitted that the defendants are asking for productionof PoA which was used by the predecessor-in-interest of plaintiffNo.1 to execute the sale deed in his favour. This burden to provide thePoA on the foundation of which the first sale deed was executed is anonerous burden and not contemplated in law. That as such the defendantsare nothing but rank tress-passers. They have never set up their title inthe property. They have never asserted that they have obtained possessoryright from person with title. Therefore, they have no right to challengethe title of plaintiff No.1.

A4.8 Relying upon the recent decision of this Court in the case ofAmar Nath (supra), it is submitted that as observed and held by thisCourt that when PoA holder executes the sale deed, he executes interms of Section 32(a) of the Registration Act and therefore he does notneed to produce the PoA. Only when the PoA holder executes furtherPoA, then only the second PoA holder will have to produce the PoABbetween him and the first PoA and not otherwise.

4.9 Making the above submissions and relying upon the abovedecision, it is prayed to dismiss the present appeal.

5. I have heard learned counsel for the respective parties at length.

At the outset, it is required to be noted that in the present case,the plaintiffs instituted the suit for declaration of title, to which they werelaying claim by virtue of the two sale deeds, one dated 3.9.1968 (executedby plaintiff No.2 in his favour on the basis of the alleged PoA alleged tohave been executed by the original land owner – Braja Mohan Dey) andDthe second sale deed dated 29.09.1968 (executed by plaintiff No.2 infavour of plaintiff No.1 as PoA holder of the original owner). Both, thelearned trial Court as well as the first appellate Court held that theplaintiffs have failed to prove their title as the PoA on the basis of whichplaintiff No.2 claimed the right/title is not forthcoming and/or not producedbefore the Court. Therefore, both, the learned trial Court as well as theEfirst appellate Court held that the requirement of Section 33(1)(c) of theRegistration Act has not been satisfied. However, by drawing thestatutory presumption under Section 60 of the Registration Act, the HighCourt has believed the sale deeds dated 3.9.1968 and 29.09.1968 andhas held that the plaintiffs have proved their title. But, by the impugnedFjudgment and order and drawing the statutory presumption, the HighCourt while exercising the powers under Section 100 CPC, has set asidethe concurrent findings recorded by the courts below.

6. When the plaintiffs claimed title on the basis of the aforesaidtwo sale deeds dated 2.9.1968 and 29.09.1968, it was for the plaintiffs toGprove even the execution of the sale deeds. The defendants were notrequired to challenge the sale deeds in the suit filed by the plaintiffs, whoprayed for decree for declaration of title in their favour. When plaintiffNo.2 claimed title on the basis of the PoA executed by the original ownerand thereafter executed the sale deed in favour of plaintiff No.1 as PoAof the original owner, the conditions provided under Section 33(1)(c) ofH

the Registration Act are required to be strictly complied with. Sections32 and 33 of the Registration Act, which are relevant for our purpose,read as under:

“32. Persons to present documents for registration.—Exceptin the cases mentioned in 33[Sections 31, 88 and 89], everydocument to be registered under this Act, whether such registrationbe compulsory or optional, shall be presented at the properregistration office,—

(a) by some person executing or claiming under the same, or inthe case of copy of decree or order, claiming under the decreeor order, or

(b) by the representative or assign of such person, or

(c) by the agent of such person, representative or assign, dulyauthorized by power-of-attorney executed and authenticated inmanner hereinafter mentioned.

33. Power-of-attorney recognizable for purposes of Section32.—(1) For the purposes of Section 32, the following powers-of-attorney shall alone be recognized, namely—

(a) if the principal at the time of executing the power-of-attorneyresides in any part of 35[India] in which this Act is for the timebeing in force, power-of-attorney executed before andauthenticated by the Registrar or Sub-Registrar within whosedistrict or sub-district the principal resides;

(b) if the principal at the time aforesaid resides in any part ofIndia in which this Act is not in force, power-of-attorneyexecuted before and authenticated by any Magistrate;

(c) if the principal at the time aforesaid does not residein 37[India], power-of attorney executed before andauthenticated by Notary Public, or any Court, Judge,Magistrate, Indian Consul or Vice-Consul, or representative ofthe Central Government:

Provided that the following persons shall not be required to attendat any registration-office or Court for the purpose of executingany such power-of-attorney as is mentioned in clauses (a) and(b) of this Section, namely—

(i) persons who by reason of bodily infirmity are unable withoutrisk or serious inconvenience so to attend:

(ii) persons who are in jail under civil or criminal process; and(iii) persons exempt by law from personal appearance in theCourt.

[Explanation.—In this sub-section, “India” means India, asdefined in clause (28) of Section 3 of the General Clauses Act,1897 (10 of 1897)].

(2) In the case of every such person the Registrar or Sub-RegistrarCor Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purportingto be the principal, may attest the same without requiring hispersonal attendance at the office or Court aforesaid.

(3) To obtain evidence as to the voluntary nature of the execution,Dthe Registrar or Sub-Registrar or Magistrate may either himselfgo to the house of the person purporting to be the principal, or tothe jail in which he is confined, and examine him, or issue acommission for his examination.

(4) Any power-of-attorney mentioned in this section may be provedEby the production of it without further proof when it purports onthe face of it to have been executed before and authenticated bythe person or Court hereinbefore mentioned in that behalf.”

7. According to the plaintiffs and it is not in dispute that the originalowner was residing in East Pakistan. According to the plaintiffs, theForiginal land owner executed the PoA in favour of plaintiff No.2 at Kumilla,Bangladesh. The original PoA is not produced on record. As per Section32 of the Registration Act, every document to be registered under theRegistration Act shall be presented at the proper registration office bysome person executing or claiming under the same, or, by the agent ofsuch person, representative or assign, duly authorised by PoA executedGand authenticated in the manner mentioned in Section 33(1)(c) of theRegistration Act. Section 33 of the Registration Act provides that for thepurposes of Section 32, only those power of attorneys shall be recognisedas are mentioned in Section 33(1). As per Section 33(1)(c) of the Act, ifthe principal at the time of execution of the PoA does not reside in India,Ha PoA executed before and authenticated by Notary Public, or anyCourt, Judge, Magistrate, Indian Consul or Vice-Consul, or representativeof the Central Government shall be valid. In the present case, as such,the requirement of Section 33(1)(c) of the Act has not been satisfied atall. Section 32 of the Act is to be read along with Section 33(1)(c) of theRegistration Act. Only in case where the execution of the PoA is asper Section 32 read with Section 33(1)(c) of the Act, there shall bestatutory presumption under Section 60 and/or under the provisions ofthe Registration Act. Therefore, the High Court has committed graveerror in drawing the statutory presumption in favour of the plaintiffs andmore particularly with respect to alleged PoA alleged to have beenexecuted by the original owner in favour of plaintiff No.2. As such,there were concurrent findings recorded by both the courts below onnon-compliance and/or non-fulfilling the conditions mentioned in Section33(1)(c) of the Registration Act. By drawing the statutory presumptionand without properly appreciating and/or considering the fact that thereis non-compliance of Section 33(1)(c) of the Registration Act therecannot be any statutory presumption, the High Court has set aside theconcurrent findings recorded by both the courts below, in exercise ofpowers under Section 100 CPC.

8. Even the conduct on the part of the plaintiffs, more particularlyon the part of plaintiff No.2, executing the second sale deed in favour ofplaintiff No.1 – his own wife as PoA of original land owner deservesserious consideration. It is required to be noted and even according tothe plaintiffs, on the basis of the PoA alleged to have been executed bythe original land owner – Braja Mohan Dey, plaintiff No.2 executed theregistered sale deed in his own favour dated 3.9.1968. If that be so, inthat case, there was no reason for him to execute the subsequent saledeed in favour of plaintiff No.1 – his own wife as PoA of the originalland owner. Once he became the owner on the basis of registered saledeed dated 3.9.1968, which was executed by him in his own name as aPoA of the original owner, he could have executed the sale deed infavour of plaintiff No.1 as the owner and not as PoA of the originalowner.

9. Even another conduct on the part of the plaintiffs submittingthe application to amend the plaint under Order 6 Rule 17 CPC submittedbefore the first appellate Court also creates doubts about the genuinityof the PoA. It was never the case on behalf of the plaintiffs before thetrial Court and in the suit that the PoA was handed over by the plaintiffs

Ato original defendant No.1 and that despite his demands he never returnedthe same. Having found and realised that the non-production of the PoAhad gone against them, subsequently, before the first appellate Court,the plaintiffs sought to make out case that the PoA was handed overby plaintiff No.2 to original defendant No.1 and that despite his demands,never returned the same. The amendment sought under Order 6 RuleB17 CPC was rightly refused by the first appellate Court. The plaintiffstried to make out altogether new case which was not even the case ofthe plaintiffs earlier. This conduct on the part of the plaintiffs also deservesserious consideration and it creates serious doubts on the genuinity ofthe PoA. In that view of the matter, the High Court has committed aCserious error in drawing statutory presumption as to the authenticity ofthe sale deeds. There may be statutory presumption as per Section 60of the Registration Act where all other requirements of execution of thesale deed, required to be complied with under the Registration Act arecomplied with and the genuineness of the PoA on the basis of which thesale deed was executed is not doubted.D10. In view of the above and for the reasons stated above and asthe PoA is not produced on record; the executant of the PoA in favourof plaintiff No.2 has not stepped into the witness box; there is non-compliance of Section 33(1)(c) of the Registration Act; and the plaintiffno.2 is claiming title on the basis of the PoA alleged to have beenEexecuted by the original owner which is not forthcoming and that plaintiffno.1 is claiming the title on the basis of the sale deed dated 29.09.1968executed by plaintiff No.2 as PoA holder of the original owner whichis not forthcoming, I am of the opinion that the learned trial Court wasjustified and right in dismissing the suit and refusing to pass decree forFa declaration of title in favour of the plaintiffs. The same was rightlyconfirmed by the first appellate Court. The High Court has committed aserious error in decreeing the suit. The impugned judgment and order ofthe High Court is unsustainable both, on law as well as on facts.

11. In view of the above and for the reasons stated above, theGpresent Appeal Succeeds and is Allowed. The impugned judgment andorder passed by the High Court decreeing the suit is hereby quashedand set aside and the judgment and decree passed by the trial Court,confirmed by the first appellate Court, is hereby restored. However, inthe facts and circumstances of the case, there shall be no order as tocosts.H

NAGARATHNA, J.

I have had the advantage of reading the judgment proposed byHis Lordship M.R. Shah, J. However, I am unable to agree with thereasoning as well as the result arrived at by His Lordship. Hence, myseparate judgment.

The defendants in Title Suit No. 201 of 1985 have assailed thejudgment and decree dated 05[th] April, 2018, passed by the High Court ofTripura in Regular Second Appeal No. 01 of 2005. By the impugnedjudgment, the judgment and decree dated 26[th] August, 2004 passed inTitle Appeal No. 02 of 1996 by the First Appellate Court, i.e., the Courtof the District Judge, West Tripura, Agartala, affirming the judgmentand decree dated 11[th] September, 1995 in Trial Suit No. 201 of 1985 hasbeen set-aside. Consequently, the suit has been decreed by the HighCourt. Hence, the appeal by the defendants in the suit.

2. For the sake of convenience, the parties herein shall be referredto in terms of their rank and status before the Trial Court.

3. The case of the plaintiffs in nutshell is stated as under:-

(i)The suit property was owned and possessed by Braja MohanDey and plaintiff no. 2, namely, Dhirendra Chandra Sahawas tenant running shop in hut located within the suitproperty. Braja Mohan Dey took loan of Rs. 10,000/-from plaintiff no. 2 and since he was unable to repay theloan, he sold the land in favour of plaintiff no.1 in lieu of theloan amount.

(ii)However, soon after the sale, Braja Mohan Dey went toEast Pakistan (now Bangladesh) and could not completeregistration of the sale deed in favour of plaintiff no. 2.Therefore, he executed Power of Attorney dated 01[st]August, 1968, in favour of plaintiff no. 2 before the 1[st] ClassMagistrate, Komilla, Komilla District, East Pakistan therebyappointing plaintiff no. 2 as his attorney i.e. on behalf of theseller, Braja Mohan Dey, to execute sale deed and transferthe property to the buyer as his Attorney.

(iii)On the strength of the Power of Attorney dated 01[st] August,1968, plaintiff no. 2 executed and registered sale deeddated 03[rd] September 1968 in his own favour as the attorney

164SUPREME COURT REPORTS

on behalf of the seller, Braja Mohan Dey. Plaintiff no. 2thereby became the owner of the suit property.

(iv)In his capacity as the absolute owner of the suit property,plaintiff no. 2 then executed sale deed dated 29[th] October,1968, in favour of his wife-plaintiff no. 1, namely, Gita RaniBSaha. The said sale deed was registered on 09[th] November,1968. That the suit land stood in the name of plaintiff no. 1who duly paid municipality tax, land revenue etc.

(v)That on one portion of the suit property described asschedule ‘A’ property in the plaint, plaintiff no. 2 was runningCa grocery business under the name M/s. Dipak Bhandar.That the land falling to the eastern side of schedule ‘A’property, described as schedule ‘B’ property in the plaint,was sold by plaintiff no. 2 to Makhan Chand Deb, whosubsequently sold the said land to Gauranga Chandra Dey.Defendant no 1 was Gauranga Chandra Dey’s tenant inDrespect of schedule ‘B’ property.

(vi)That plaintiff no. 2 constructed godown in the portionbehind his shop and the same has been described asschedule ‘C’ property in the plaint. The same was also inthe possession of plaintiff no. 2. That defendant no. 1 triedEto take forceful possession of the suit property by breakingdown the said godown. In this regard Miscellaneous CaseNo. 02 of 1981 was registered in the Court of the Sub-Divisional Magistrate, Sadar and prohibitory order wasissued under Section 144 of the Code of Criminal Procedure,F1898. During the pendency of the prohibitory order, thedefendants entered into the suit property, took forcefulpossession of the same and broke down the godown.

(vii)Thereafter, the Executive Magistrate took cognizance ofMiscellaneous Case No. 02 of 1981 and by an order dated13[th] July, 1984 directed the defendants to vacate the suitpremises, failing which, possession thereof would beforcefully recovered with the aid of police authorities.However, the order dated 13[th] July, 1984 was set aside bythe Additional District and Sessions Judge by an order dated30[th] January, 1985 on the ground that there was delay of

two months in conversion of the proceedings initiallyregistered under Section 144 of the Code of CriminalProcedure to proceedings under Section 145 of the Code.The order of the Additional District and Sessions Judgedated 30[th] January, 1985 was sustained by the Gauhati HighCourt, while granting liberty to plaintiff no. 2 to initiate freshproceedings in this regard. That accordingly freshproceedings were initiated.

(viii) That notwithstanding the fact that notice of the freshproceedings was served on the defendants, they startedputting up pucca construction on the suit property.CTherefore, the plaintiffs were constrained to file suit fordeclaration of title and recovery of khas possession of thesuit land.

4. In response to the plaint, the defendants filed written statementthe contents of which are encapsulated as under:-

(i)The fact that Braja Mohan Dey was the original owner andpossessor of the suit property, was denied. It was averredthat the contents of the plaint regarding the loan obtainedby Braja Mohan Dey, in lieu of which the suit property wassold to plaintiff no. 2, weretotally false. That no power ofattorney was executed by Braja Mohan Dey in favour ofEplaintiff no. 2 in respect of the suit property.

(ii)That plaintiff no. 2 was tenant under defendant no. 1 in aroom located in the northern portion of schedule ‘A’ property.

(iii)That there arose no question of the defendants forciblytaking possession of schedule ‘C’ property as they had beenin legal possession of the suit property for more than thirtyyears, i.e., since the year 1981. That the defendants hadbeen running business in the suit property under the name“Chandra Hotel.” That neither of the plaintiffs was ever inpossession of the suit land. That the documents based onwhich the plaintiffs claimed title over the suit land, i.e., powerof attorney and sale deeds were false and fabricated.

With the aforesaid averments, it was prayed before the Trial Courtthat the suit for declaration of title and recovery of khas possession ofthe suit land, filed by the plaintiffs, be dismissed.

A5. The Court of the Assistant District Judge, West Tripura, Agartalaby its judgment and decree dated 11[th] September, 1995 dismissed T.S.No. 201 of 1985.

The salient findings of the Trial Court are as under:

(i)That the sale deed dated 03[rd] September, 1968 did not containBan endorsement by the Sub-Registrar to the effect that thesale deed was executed by plaintiff no. 2 in his capacity asthe attorney of Braja Mohan Dey. The endorsement madeby the Sub-Registrar on the sale deed dated 03[rd] Septemberwas simple endorsement merely stating that the sale deedChad been executed by plaintiff no. 2.

(ii)That it was not stated in the sale deed dated 03[rd] September,1968 itself that plaintiff no. 2 was making the sale on thestrength of the power of attorney executed in his favour byBraja Mohan Dey.

D(iii)That the plaintiffs did not produce before the Trial Court,the power of attorney which formed the basis for the saledeed dated 03[rd] September, 1968. That although in anothersuit, being T.S. 79/1973, plaintiff no. 2 had deposed that thedocument conferring power of attorney on plaintiff no. 1,Ewas handed over by him to defendant no. 1, no suchsubmission was made in the present case.

(iv)That the sale deed dated 03[rd], September, 1968 could notbe held to be properly executed for want of power ofattorney authorising such execution. Therefore, plaintiff no.F2 could not be said to have any right, title or interest overthe suit property. Consequently, it could not be held that thetransfer made by plaintiff no. 2 in favour of plaintiff no. 1was valid.

(v)That no evidence was led by the defendants to establishtheir title over the suit property by adverse possession whichGis significant finding.6. Being aggrieved, the plaintiffs preferred T.A. No. No. 02 of1996 before the first appellate court. By judgment dated 26[th] August,1995, the first appeal was dismissed and the judgment of the Trial Courtwas confirmed.H

The relevant findings of the first appellate court are encapsulatedas under:

(i)That the plaintiffs failed to prove that the power of attorneywas handed over to defendant no. 1. That since the powerof attorney stated to be executed by Braja Mohan Dey infavour of plaintiff no. 2 was neither produced before theBcourt, nor was it proved that the same was handed over todefendant no. 1, question had arisen as to existence andgenuinity of the power of attorney.

(ii)That since the said power of attorney formed the basis forthe sale deed dated 03[rd] September, 1968, the sale deedcould not be considered to be legally executed.

7. Being aggrieved, the plaintiffs preferred regular second appealNo. 01 of 2005 before the High Court of Tripura at Agartala. By theimpugned judgment dated 05[th] April, 2018, the second appeal was allowedand the judgments of the Trial Court and first appellate court were setaside.

The High Court considered and decided the following substantialquestions of law:

“1) Whether the endorsement made on the sale deed No. 1-10394dated 03.09.1968 in respect of the power of attorney is asubstantive evidence in respect of the power of attorney authorisingthe plaintiff no. 2 to sell the said land as demised in the sale deeddated 03.09.1968?

2) Whether the defendants had fundamental onus to discharge inrespect that the power of attorney was not in existence or forgedand as such, the sale deed dated 03.09.1968 cannot be treated asthe instrument of valid transfer?”

8. The following findings were recorded by the High Court in theimpugned judgment:

(i)That facts as to the authority of plaintiff no. 2 to executethe sale deed dated 03[rd] September, 1968 were recitedtherein and having been satisfied about the power of plaintiffno. 2 to execute the sale deed,the same was allowed by theSub-Registrar for being registered.

A(ii)When registering authority has made an endorsementaccepting that by virtue of power of attorney, the attorneywas allowed to execute the sale deed, statutory presumptionought to be drawn as to the fact of validity of the power ofattorney and consequently of the sale deed.

B(iii)That there is presumption of correctness under Section58 of the Registration Act, 1908, to transactions endorsedby Sub-Registrar. That such statutory presumption canbe rebutted only by strong evidence to the contrary.

C(iv)That the Trial Court and first appellate court had wronglyshifted the onus on the plaintiffs, while the burden ought tohave been on the defendants to prove their case which wascontrary to the statutory presumption of validity of the saledeed dated 03[rd] September, 1968. That the defendants failedto rebut the presumption of validity of the sale deed evenDthough the onus was squarely on them.

Aggrieved by the judgment of the High Court allowing the secondappeal preferred by the plaintiffs, the appellants-defendants haveapproached this Court.

E9. We have heard Sri Rana Mukherjee, learned senior advocateappearing on behalf of the appellants and Sri. Hrishikesh Baruah, learnedadvocate appearing on behalf of the respondents, and perused the materialon record.

10. Learned Senior Counsel for the appellants-defendants at theFoutset contended that the High Court was not right in allowing the secondappeal preferred by the plaintiffs by drawing presumption as to validityof the sale deed dated 03[rd] September, 1968. That the High Courtcommitted serious error in law while setting aside the concurrentfindings of the Trial Court and first appellate court to hold that the saledeed dated 03[rd] September, 1968 was valid even though the power ofGattorney forming the basis of such sale deed was neither produced norproved. That there may be statutory presumption under Section 60 ofthe Registration Act, 1908 only where all other requirements of executionof sale deed are complied with and when there is no doubt as to thegenuinity of the power of attorney. That presumption ought not to havebeen drawn in the present case as the plaintiffs have failed to produceH

the power of attorney or even copy thereof to prove the existence ofthe same.

11. It was further contended that even if it was to be assumedthat power of attorney was executed by Braja Mohan Dey in favourof plaintiff no. 2, the same would still not be valid in the eye of law owingto reasons of non- satisfaction of the statutory requirements of Section33 (1) (c) of the Registration Act, 1908. That it was an undisputed factthat as on the date on which the power of attorney is stated to be executed,Braja Mohan Dey was residing in East Pakistan. That power of attorneyexecuted in foreign country, in order to be valid would have to beexecuted in accordance with Section 33 (1) (c) of the Registration Act,1908. However, in the instant case, there is no evidence to demonstratethat the power of attorney was executed in accordance with the saidstatutory provision. That since the execution of the power of attorneywas not in accordance with Section 33(1)(c), no statutory presumptioncan be drawn under Section 60 of the Registration Act, 1908, as to thevalidity of the sale deed dated 03[rd] September, 1968.12. It was next submitted that the conduct of plaintiff no. 2 requiredconsideration inasmuch as he executed the second sale deed in favourof his wife, as the power of attorney of the original owner, even thoughhe could have executed the same in his capacity as owner of the suitproperty by virtue of the sale made in his favour on 03[rd] September,1968.

13. Sri Rana Mukherjee, Learned Senior Counsel appearing onbehalf of the defendants- appellants contended that party who averstitle in property must prove the same and such party is not relieved ofthe onus probandi. That assuming for the sake of argument that thesuit was not defended by the defendants, the plaintiffs would still have toprove their title in order to be entitled to decree.

With the aforesaid averments, it was prayed that the impugnedjudgment of the High Court be set-aside and the judgment of the TrialCourt which was affirmed by the first appellate court, be restored.

14. Per contra, learned counsel for the respondents-plaintiffssupported the impugned judgment of the High Court and contended thatthe High Court rightly drew statutory presumption as to the validity ofthe sale deed dated 03[rd] September, 1968. That it is trite law thatregistration of document is solemn act and the recitals of registered

Adocument are presumed to be valid unless such presumption is rebuttedby strong evidence to the contrary. That since the Sub-Registrar hadaccepted the sale deed dated 03[rd] September, 1968 for registration, it isto be presumed that the Sub-Registrar had done so only on satisfyinghimself as to the fact that the person who was executing the documentwas the proper person and competent to do so.B

15. It was submitted that the endorsement made on the sale deeddated 03[rd] September, 1968 could be considered as prima-facie evidenceas to the title to the suit property. That accordingly, there would arise apresumption as to validity of the sale deed. While such presumption is arebuttable presumption, the defendants in the present case had failed toCdischarge the burden of rebutting the same.

16. Section 60(2) of the Registration Act, 1908 was pressed intoservice, to contend that registration of document was proof enough ofthe fact that the said document had been registered in the manner providedunder the Registration Act, 1908, and that the facts mentioned in theDendorsement have occurred as mentioned therein. In that regard, it wascontended that since the sale deed dated 03[rd] September, 1968 was aregistered document, statutory presumption may be drawn as to thefact that the registration was completed after due compliance of theprovisions of the Act.E

17. That the Trial Court and the first appellate court cast an onerousburden on the plaintiffs to produce the power of attorney which formedthe basis of the sale deed dated 03[rd] September, 1968 to prove the saledeed which is deed of conveyance of title. That such burden was notcontemplated under law and on that ground, the present Civil AppealFmay be dismissed. It was urged that production of power of attorneywas not required in order to prove registered sale deed.

In the above backdrop, it was contended that the High Court wasright in allowing the second appeal and hence, there is no merit in thepresent appeal.G18. Having heard the learned counsel for the respective parties,the following points would arise for consideration:

(i)Whether the statutory requirements of Section 33 (1) (c)of the Registration Act, 1908 had been complied with in theinstant case while executing the power of attorney datedH01[st] August, 1968?

(ii)Whether non-production of the document of power ofattorney before the Trial Court and the first appellate courtwould be fatal to the case of the plaintiffs?

(iii)Whether the plaintiffs have proved the sale deeds dated03[rd] September, 1968 and 29[th] October, 1968?

(iv)What order?

The relevant Sections of Registration Act, 1908, adverted to bylearned counsel for the parties read as under:

“32. Persons to present documents for registration.—Exceptin the cases mentioned in 5 [sections 31, 88 and 89], everydocument to be registered under this Act, whether such registrationbe compulsory or optional, shall be presented at the properregistration-office,—

(a)by some person executing or claiming under the same, or,in the case of copy of decree or order, claiming underthe decree or order, or

(b)by the representative or assign of such person, or

(c)by the agent of such person, representative or assign,duly authorised by power-of-attorney executed andauthenticated in manner hereinafter mentioned.

33. Power-of-attorney recognisable for purposes ofsection 32.—

(1) For the purposes of section 32, the following powers-of-attorney shall alone be recognized, namely:—

(a)xxxxxxxxx;(b)xxxxxxxxx;

(c)if the principal at the time aforesaid does not reside in1[India], power-of-attorney executed before and authenticatedby Notary Public, or any Court, Judge, Magistrate, [2][Indian]Consul or Vice-Consul, or representative [3][***] of the CentralGovernment:

1 Subs. by Act 3 of 1951, Sec.3 and Sch., for “the States” (w.e.f. 1-4-1951).

2 Subs. by the A.O. 1950, for “British”.

3 The words “of His Majesty or” omitted by the A.O. 1950.

34. Enquiry before registration by registering officer.—

(l) Subject to the provisions contained in this Part and in sections41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registeredunder this Act, unless the persons executing such document,or their representatives, assigns or agents authorized asaforesaid, appear before the registering officer within the timeallowed for presentation under sections 23, 24, 25 and 26:

Provided that, if owing to urgent necessity or unavoidableaccident all such persons do not so appear, the Registrar, incases where the delay in appearing does not exceed fourmonths, may direct that on payment of fine not exceedingten times the amount of the proper registration fee, in additionto the fine, if any, payable under section 25, the document maybe registered.

(2)Appearances under sub-section (1) may be simultaneousor at different times.

(3)The registering officer shall thereupon—

(a)enquire whether or not such document was executedby the persons by whom it purports to have been executed;

(b)satisfy himself as to the identity of the persons appearingbefore him and alleging that they have executed thedocument; and

(c)in the case of any person appearing as representative,assign or agent, satisfy himself of the right of such personso to appear.

(4)Any application for direction under the proviso to sub-section (1) may be lodged with Sub-Registrar, who shallforthwith forward it to the Registrar to whom he is subordinate.

(5)Nothing in this section applies to copies of decrees ororders.

58. Particulars to be endorsed on documents admitted toregistration.—

(1) On every document admitted to registration, other than acopy of decree or order, or copy sent to registering officer

under section 89, there shall be endorsed from time to time thefollowing particulars, namely:—

(a) the signature and addition of every person admitting theexecution of the document, and, if such execution has beenadmitted by the representative, assign or agent of any person,the signature and addition of such representative, assign oragent;

(b) the signature and addition of every person examined inreference to such document under any of the provisions ofthis Act; and

(c) any payment of money or delivery of goods made in thepresence of the registering officer in reference to theexecution of the document, and any admission of receipt ofconsideration, in whole or in part, made in his presence inreference to such execution.

(2) If any person admitting the execution of document refusesto endorse the same, the registering officer shall neverthelessregister it, but shall at the same time endorse note of suchrefusal.

—“60. Certificate of registration.

(1) After such of the provisions of Sections 34, 35, 58 and 59as apply to any document presented for registration have beencomplied with, the registering officer shall endorse thereon acertificate containing the word “registered”, together with thenumber and page of the book in which the document has beencopied.

(2) Such certificate shall be signed, sealed and dated by theregistering officer, and shall then be admissible for the purposeof proving that the document has been duly registered in mannerprovided by this Act, and that the facts mentioned in theendorsement, referred to in Section 59 have occurred as thereinmentioned.”

Sections 67 and 85 of the Indian Evidence Act, 1872, reads asunder:

“67. Proof of signature and handwriting of person allegedto have signed or written document produced.—If adocument is alleged to be signed or to have been written wholly

Aor in part by any person, the signature or the handwriting of somuch of the document as is alleged to be in that person’shandwriting must be proved to be in his handwriting.

85. Presumption as to powers-of-attorney. –– The Court shallpresume that every document purporting to be power-of-attorney,Band to have been executed before, and authenticated by, NotaryPublic, or any Court, Judge, Magistrate, [Indian] Consul or Vice-Consul, or representative of the [Central Government], was soexecuted and authenticated.”

Section 17 of the Registration Act speaks about documents ofCwhich registration is compulsory, while Section 18 deals with documentsof which registration is optional. Clause (f) of Section 18 states that allother documents not required by Section 17 to be registered, may beregistered at the option of the parties. In other words, the documentswhich are compulsorily registrable are listed under Section 17 and suchlist is exhaustive. The documents, registration of which is optional, areDspecified in clauses (a) to (e) of Section 18 but this list is not exhaustive.Under clause (f) of Section 18 “all other documents” which do not requireregistration under Section 17 are also optionally registrable such as thepower of attorney, document relating to adoption etc.. power of attorneyis not compulsorily registrable document when it is duly notarized. ItEcarries the presumption of being valid in view of Section 85 of EvidenceAct. Since, power of attorney does not come within the ambit of Section17 or clause (a) to (e) of Section 18, registration of power of attorneyis optional. An attorney holder may execute deed of conveyance inexercise of the power granted under the power of attorney and conveytitle on behalf of the grantor or principal, provided he has been specificallyFgiven power to sell the property of the principal. The nature and scopeof power of attorney has been explainedby this Court speaking throughR.V. Raveendran, J. in Suraj Lamp and Industries vs. State ofHaryana (2012) 1 SCC 656. The relevant paragraphs of the judgmentreads as under:G“20. power of attorney is not an instrument of transfer in regardto any right, title or interest in an immovable property. The powerof attorney is creation of an agency whereby the grantor authorisesthe grantee to do the acts specified therein, on behalf of grantor,which when executed will be binding on the grantor as if done byhim (see Section 1-A and Section 2 of the Powers of AttorneyH

Act, 1882). It is revocable or terminable at any time unless it ismade irrevocable in manner known to law. Even an irrevocableattorney does not have the effect of transferring title to the grantee.

21. In State of Rajasthan v. Basant Nahata [(2005) 12 SCC77] this Court held: (SCC pp. 90 & 101, paras 13 & 52)

‘13. grant of power of attorney is essentially governed byChapter X of the Contract Act. By reason of deed of powerof attorney, an agent is formally appointed to act for the principalin one transaction or series of transactions or to manage theaffairs of the principal generally conferring necessary authorityupon another person. deed of power of attorney is executedby the principal in favour of the agent. The agent derives aright to use his name and all acts, deeds and things done byhim and subject to the limitations contained in the said deed,the same shall be read as if done by the donor. power ofattorney is, as is well known, document of convenience.

52. Execution of power of attorney in terms of the provisionsof the Contract Act as also the Powers of Attorney Act isvalid. power of attorney, we have noticed hereinbefore, isexecuted by the donor so as to enable the donee to act on hisbehalf. Except in cases where power of attorney is coupledwith interest, it is revocable. The donee in exercise of his powerunder such power of attorney only acts in place of the donorsubject of course to the powers granted to him by reasonthereof. He cannot use the power of attorney for his ownbenefit. He acts in fiduciary capacity. Any act of infidelity orbreach of trust is matter between the donor and the donee.’An attorney-holder may however execute deed ofconveyance in exercise of the power granted under the power ofattorney and convey title on behalf of the grantor.”

The relevant provisions of the Registration Act, 1908, could bediscussed.

(i)Section 32 speaks about persons to present document forregistration. power of attorney has special authority topresent document on behalf of the principal at the

176SUPREME COURT REPORTS

Aregistration office vide Chottey Lal vs. The Collector ofMoradabadA.I.R. 1922 PC 279.

(ii)Under Section 33 (1) (c), if power of attorney has beenexecuted before and authenticated by Magistrate, 1[st] Classof Komilla (Bangladesh) authorising the attorney to executeBa sale deed for house in India, it is sufficient to prove itsexecution vide Atal Chakravarty vs. Sudhi Gopal Pandey(1969) 73 CWN 947. On the other hand, if power ofattorney is not executed and authenticated in compliancewith Section 33(1)(c), the same is invalid. Thus, if principaldoes not reside in India and power of attorney executedCbefore and authenticated by Notary Public or any courtJudge, Magistrate, Indian Consul or Vice-Consul, orrepresentative of the Central Government, the same is valid.

(iii)Section 34 speaks about the enquiry to be made beforeregistration of document by registering officer. SectionD35 casts duty on the registering authority to enquire aboutthe identity of the executant and the factum of executionand registration of document is to be treated aspresumption of execution by the person indicated as theexecutant of the document. Such presumption is, however,Erebuttable. Sections 34 and 35 state what registering officerhas to see before registering document. Once satisfiedas to such particulars as are stated under Sections 34 and35, he cannot refuse to register document except mentionedunder grounds in Section 35(3).

F(iv)Section 58 speaks about particulars to be endorsed ondocuments admitted for registration, namely:

a)the signature and addition of every person admittingthe execution of the document, and, if such executionhas been admitted by the representative, assign orGagent of any person, the signature and addition ofsuch representative, assign or agent;

b)the signature and addition of every person examinedin reference to such document under any of theprovisions of this Act; and

c)any payment of money or delivery of goods made inthe presence of the registering officer in referenceto the execution of the document, and any admissionof receipt of consideration, in whole or in part, madein his presence in reference to such execution.

Thus, the registering officer shall endorse the signature of everyperson admitting the execution of document. Such document is primafacie evidence against the executant. The presumption of correctnessattached to endorsement made by the Sub-Registrar is in view of theprovisions of Sections 58, 59 and 60 of the Registration Act. Thispresumption can be rebutted only by strong evidence to the contrary.

On compliance of Sections 34, 35, 58 and 59 as they apply to agiven document, the registering officer shall endorse certificatecontaining word “Registered” on the document itself and indicate thenumber and page of the book in which the document has been copied.This gives the document, the character of registered document. Thus,compliance of the provisions of Sections 34, 35, 52, 58 and 59 constitutesregistration. The certificate of registering officer is admissible to provethe admission of execution.

However, registered deed has to be proved in accordance withSection 67 of the Evidence Act, 1872. Section 67 states that if documentis alleged to be signed or to have been written wholly or in part by anyperson, the signature or the handwriting of so much of the document asis alleged to be in that person’s handwriting must be proved to be in hishandwriting. Section 67 states that proof of signature and the genuinenessof document proved by the proof of handwriting is proof of execution.Execution of document means signing document by consenting on itby party. Section 67 does not prescribe any particular mode of proof.Mere registration of document is not self-sufficient proof of itsexecution. It is only prima facie proof of its execution particularlywhen no other evidence is available. Registration of document isevidence of its execution by its executor. Certificate by registering officerunder Section 60 of the Registration Act, 1908 is relevant for proving itsexecution. Proof by evidence afforded by the contents of the documentsis of considerable value.

In the instant case, what is sought to be proved is title by thesale deed and not the power of attorney as it is the sale deed which

Aconveys title and the sale deed has been executed in accordance withthe provisions of Registration Act, 1908, and proved in accordance withSection 67 of Evidence Act. It cannot be held that the sale made onbehalf of the seller (original owner of the suit land) to the buyer throughthe power of attorney is vitiated as the power of attorney was notproduced before the Court. This is because even in the absence of theBproduction of the power of attorney, the contents of the sale deed andthe execution of the power of attorney as well as the sale deed havebeen established by proving the sale deed in accordance with the law.

19. primary plank in the arguments advanced on behalf of theappellants-defendants is that the requirements of Section 33(1) (c) ofCthe Registration Act had not been complied with while executing thepower of attorney dated 01[st] August, 1968 and therefore, no validitycould be attached to the said document. Consequently, the sale deeddated 03[rd] September, 1968 which was executed on the strength of thesaid power of attorney could also not be presumed to be valid. In orderDto determine whether the statutory requirements of Section 33 (1) (c) ofthe Registration Act, 1908 had been complied with while executing thepower of attorney, the recitals of the sale deed dated 03[rd] September,1968 may be referred to. On perusal of Annexure CA-1 (Exhibit – 11before trial court) which is copy of deed of sale dated 03[rd] September,1968 executed by the Power of Attorney holder (plaintiff No.2) in favourEof himself, the following facts emerge:

(i)That Sri Braja Mohan Dey is the owner of the land inquestion after getting rayati jote allotment order from thegovernment land authorities.

F(ii)That due to the need for construction of huts and for urgentfamily expenditure, the seller Braja Mohan Dey hadapproached the buyer, that is, Sri Dhirendra Chandra Saha,(plaintiff No.2) to lend some money, as the buyer was thetenant of the said land (suit schedule property) and the buyeragreed to lend the money to the seller.

(iii)In the year 1964, the seller received loan amount ofRs.10,000/- (ten thousand) from the buyer and constructedhuts on the aforesaid land.

(iv)The seller had gone to Hatiya of East Pakistan but wasunable to return and could not repay the loan amount to theH

buyer therefore, he intended to sell his land and, hence,through messenger, informed the buyer about the sameas he was in possession of the suit schedule land, as tenant.The said tenant/buyer agreed to buy the land in lieu of thedebt that the seller had to pay.

(v)The seller acknowledged this condition that in dischargingthe liability of loan of Rs.10,000/- towards the buyer and toprovide registered Sale Deed in favour of the buyer, on1[st] August, 1968 executed Power of Attorney before the1[st] Class Magistrate, Komilla, Komilla District, East Pakistanappointing Sri Dhirendra Chandra Saha – plaintiff No.2 ashis attorney i.e. on behalf of the seller to execute saledeed and transfer the property to the buyer as his Attorney.

(vi)That the buyer can obtain mutation against the seller in theGovernment records by creating record of right in hisname including his legal heirs and the successors withoutany objection.

20. In Annexure CA – 2 (Exhibit – 12), which is copy of the saledeed dated 29[th] October, 1968 the following recitals are recorded:

(i)That the schedule land is in absolute ownership andpossession of the owner namely, Sri Dhirendra ChandraESaha (plaintiff No.2) by virtue of registered sale deeddated 03[rd] September, 1968.

(ii)That since the original owner, Sri Braja Mohan Dey, couldnot repay sum of Rs. 10,000/- (ten thousand) to the seller(Sri Dhirendra Chandra Saha) he executed Power ofAttorney dated 01[st] August, 1968 appearing before the 1stClass Magistrate, Komilla Sadar, District Komilla, EastPakistan appointing Sri Dhirendra Chandra Saha (plaintiffNo.2) as his legal attorney giving power to sell or transferhimself the property in question the land in question.

(iii)That on the strength of the aforesaid power of attorneydated 03[rd] September, 1968, plaintiff No.2 sold the saidproperty to himself vide registered deed dated 03[rd]September, 1968 as result he became the absolute ownerand in possession of the land along with the house standingthereon as buyer.

180SUPREME COURT REPORTS

A(iv)As an absolute owner, he executed registered sale deed infavour of his wife Geeta Rani Saha on account of an earlierloan taken by him for Rs.20,000/- and in lieu of repayment

thereof.

21. On conjoint reading of the aforesaid two documents, namelyBsale deeds, it is established that the initial sale deed dated 03[rd] September,1968 by plaintiff No.2 Sri Dhirendra Chandra Saha is as power ofattorney holder of Braja Mohan Dey, to himself as buyer. The powerof attorney is dated 01[st] August, 1968, the details of which are referredto in the said sale deed inasmuch as the power of attorney was executedCby the original owner Sri Braja Mohan Dey before the 1[st] ClassMagistrate, Komilla, East Pakistan, which is evident on reading ofboth the documents. Thereafter, plaintiff No.2 executed sale deed dated29[th] October, 1968 in favour of the plaintiff No.1 as the absolute owner ofthe suit schedule property. Therefore, there is compliance of Section33(1)(c) of the Registration Act, 1908 inasmuch as the power of attorneyDhas been executed before the 1[st] Class Magistrate, Komilla, East Pakistan.Hence there is no substance in the contention of the learned Senior Counselappearing for the appellants-defendants that the requirements of Section33(1) (c) of the Registration Act, 1908, had not been complied with whileexecuting the power of attorney dated 01[st] August, 1968 and therefore, noEvalidity could be attached to the said document.22. It is also required to be noted at this juncture that as per Section18 of the Registration Act, registration of deed of attorney is optional.Further, Section 32 deals with the categories of persons who can presentdocuments for registration. The following three categories of personsare mentioned therein:F

(a)by some person executing or claiming under the same, or,in the case of copy of decree or order, claiming underthe decree or order, or

(b)by the representative or assign of such person, or

G(c)by the agent of such person, representative or assign,duly authorised by power-of-attorney executed andauthenticated in manner mentioned therein.

Therefore, it is evident that plaintiff no. 2, had the authority as perSection 32 (c) to present document for registration in his capacity asHthe attorney of Braja Mohan Dey, the original owner of the suit property.

23. Further, non- production of the power of attorney in the suit isalso not fatal to the case of the plaintiffs. In this regard, reliance may beplaced on recent judgment of this Court in Amar Nath vs. Gian Chandand Anr., 2022 SCC OnLine SC 102. The facts of the said case arethat the Plaintiff therein had executed power of attorney in favour ofthe second defendant therein and on the strength of such power ofattorney, the second defendant executed sale deed in favour of thefirst defendant. However, the plaintiff challenged the sale made in favourof the first defendant, inter-alia, on the ground that the second defendantcould not have executed sale deed in the absence of the original powerof attorney and the sub-registrar was required to verify this aspect fromthe second defendant. It was contended that the sale deed executedwithout producing the power of attorney was without authority as theplaintiff No.2 was not competent to transfer the possession in the absenceof the original power of attorney. The suit was dismissed by the TrialCourt and the First Appellate Court. The High Court in Second Appealreversed the decision of the Trial Court and First Appellate Court anddecreed the suit in favour of the plaintiff. In doing so, the High Courtnoted that it was unclear from the endorsement on the sale deed as to bywhom the plaintiff No.2 was identified to be the power of attorney. ThisCourt in Civil Appeal challenging the decision of the High Court, setaside the same and held that power of attorney holder, while executinga sale deed, need not produce the original document conferring powerof attorney. That sale would not be liable to be disturbed solely on theground that the power of attorney forming the basis of such sale was notproduced before the Sub-Registrar at the time of registration.

On examining the scheme of Sections 32-34 of the RegistrationAct, the following observations were made:

“19.The argument of the plaintiff that for proper and legalpresentation of document, the first defendant was obliged toproduce the original power of attorney, does not appear to be sound.

20. In other words, when person empowers another to executea document and the power of attorney, acting on the power,executes the document, the power of attorney holder can presentthe document for registration under Section 32(a). Section 32(a)of the Registration Act deals with the person executing documentand also the person claiming under the same. It also provides forpersons claiming under decree or an order being entitled to

present document. Section 32(b) speaks about the representativeor assignee of ‘such person’. The word such person in Section32(b) is intended to refer to the persons covered by Section 32(a).Finally, Section 32(c) provides for the agent of ‘such person’which necessarily means the persons who are encompassed bySection 32(a). Besides agent of the person covered by Section32(a), Section 32(c) also takes in the agent of the representativeor assignee. Now the words representative or assignee are to befound in Section 32(b). Thus, Section 32(c) deals with agents ofthe persons covered by Section 32(a) and agents of therepresentative or assignee falling under Section 32(b). It is inrespect of such an agent that there must be due authorisation bya power of attorney, which in turn, is to be executed andauthenticated in the manner provided for in Section 33. However,the person, who has actually signed the document or executedthe document for the purpose of Section 32 (a) does not require apower of attorney to present the document. It may be open to theprincipal, who has entered obligations under the document, topresent the document. Section 32(c) must alone be read withSection 33 of the Act. Thus, when Section 32(c) of the RegistrationAct declares that document, whether it is compulsorily oroptionally registrable, is to be presented, inter alia, by the agentof such person, representative or assignee, duly authorised bypower of attorney, it must be executed and authenticated in themanner and hereinafter mentioned immediately in the nextfollowing section. Section 33 by its very heading provides for powerof attorney recognisable for the purpose of Section 32. Section32(a) cannot be read with Section 33 of the Act. In other words,in situation, if document is executed by person, it will beopen to such person to present the document for registrationthrough his agent. The agency can be limited to authorising theagent for presenting the document for it is such power of attorney,which is referred to in Section 32(c). It is in regard to power ofattorney holder, who is authorised to present the document forregistration to whom Section 33 would apply. In the facts of thiscase, the second defendant was armed with the power of attorneydated 28.01.1987 and if it was not cancelled and he had executedthe sale deed on 28.04.1987, he would be well within his rights topresent the document for registration under Section 32(a) of theAct.

21. XXX XXX

22. XXX XXX

23. XXX XXX

24. XXX XXX

25. XXX XXX

26. For reasons, which we have indicated, Section 32(c) readwith Section 33 and Section 34(2)(c) are interrelated and theywould have no application in regard to the document presentedfor registration by power of attorney holder who is also theexecutant of the document. In other words, there is really no needfor the production of the original power of attorney, when thedocument is presented for registration by the person standing inthe shoes of the second defendant in this case as he would becovered by the provisions of Section 32(a) as he has executed thedocument though on the strength of the power of attorney.Tomake it even further clear, the inquiry contemplated under theRegistration Act, cannot extend to question as to whether theperson who executed the document in his capacity of the powerof attorney holder of the principal, was indeed having valid powerof attorney or not to execute the document or not.”(Underlining by me)

In short, the law laid down in Amar Nath (supra) supports theposition that production of the original power of attorney is not anindispensable requirement to establish the validity of execution of saledeed. It would therefore follow that production of power of attorney isnot necessary requirement to prove sale deed before court of lawexecuted through power of attorney.

24. Section 67 of the Evidence Act deals with proof of documentssuch as sale deed as in the instant case. The proof of signature or thehandwriting of the executant on document is sufficient to prove adocument which is the sale deed dated 29[th] October, 1968, in the instantcase. There is no dispute that the said sale deed is not signed by plaintiffNo.2 or that it is not his signature or that he is not the executor of thedocument. The admission of the signature of the said document by plaintiffNo.2 is proof of the signature on the document which is sufficient forproof of the document of sale deed of sale in favour of plaintiff No.1.

BCD

AFurther, the same is registered sale deed which is document conveyingtitle. Hence, the plaintiff No.1 has acquired title from plaintiff No.2 andfrom the original owner of the land in question. Therefore, under thecircumstances, plaintiff No.1 has proved her right, title and interest inthe land in question. There is no contra evidence produced by thedefendants so as to defeat the validity of the sale deeds. The saidBdocuments speak for themselves. Therefore, there is no substance inthe contentions of the appellants arising under the provisions of theRegistration Act, 1908. Thus, plaintiff No.1 has acquired title to the landin question. Further, when sale deed is executed on the strength ofdeed of power of attorney, the non-production of the deed of power ofCattorney in the suit is not fatal to the case of the plaintiff.

25. The appellants-defendants herein contended that that theremay be statutory presumption as per Section 60 of the RegistrationAct, 1908, only where all other requirements of execution of sale deedare complied with and there is no doubt as to the genuineness of theDpower of attorney. In the present case, the sale deed dated 03[rd] September,1968 was executed on the strength of the power of attorney which wasexecuted in conformity with Section 33 (1) (c) of the Registration Act,1908 because the power of attorney has been duly executed before the1[st] Class Magistrate, Komilla, East Pakistan as noted from the two saledeeds. There is no contra evidence produced by defendants in that regard.ESince the requirements of execution of sale deed are duly compliedwith, and there is no reason to doubt the recitals of the sale deed whichhas been proved in accordance with law, it would follow that the statutorypresumption under Section 60 of the Registration Act could be invokedin the instant case.F

26. It is trite that registration of document is solemn act ofparties and the recitals of registered document are presumed to bevalid unless such presumption is rebutted by strong evidence to thecontrary, vide Ishwar Dass Jain vs. Sohan Lal, (2000) 1 SCC 434.This is because, as already stated, the document speaks for itself.GIn

In Chottey Lal vs. The Collector of Moradabad (supra) thePrivy Council considered the question as to the presumption of validityof power of attorney which formed the basis of registered mortgagedeed which was later challenged. The Privy Council noted that since thesub-registrar had accepted the document for registration, it is prima-Hfacie evidence that the conditions have been satisfied and after registration

of the document, the burden of proving any alleged infirmity rests on theperson who challenges the registration. Similarly, in Jugraj Singh andAnr. vs. Jaswant Singh and Ors., 1970 (2) SCC 386, this Courtreiterated the legal position as to the presumption of regularity of officialacts, and held that it would be presumed that sub-registrar registeringa document would have proceeded with the registration only on satisfyinghimself as to the fact that the person who was executing the documentwas the proper person.

27. Reliance may also be placed on the decision of this Court inRattan Singh and Ors. vs. Nirmal Gill and Ors., AIR 2021 SC 899.In the said case, the issue pertained to the validity of general power ofattorney (hereinafter, “GPA”) and consequently of the sale deed executedon the strength of the GPA. The plaintiff therein, being the executor ofthe GPA contended that the GPA was obtained fraudulently and wastherefore invalid. This Court, while holding that no case of fraud wasmade out, upheld the validity of the GPA and the sale deed executed onthe strength of the GPA. The relevant observations of this Court as tothe presumption of validity of documents and burden of proof requiredto rebut such presumption, are extracted as under:

“The presumption in favour of 30-year old document is arebuttable presumption. Nothing prevented the Plaintiff to rebutthe presumption by leading appropriate evidence in order to disprovethe same. Since the Plaintiff failed to do so, the said documentwould be binding on the Plaintiff. As matter of fact, the partieshad acted upon the terms of the said document without any demursince 1963 and it was, therefore, not open to resile therefrom atthis distance of time. Hence, the trial Court was right in holdingthe 1963 GPA, to be genuine document.”

28. In short, it has been authoritatively laid down by this Courtthat registered document carries with it, by virtue of it being registered,the presumption as to the authority of the person executing it. In thepresent case, the Trial Court and the First Appellate Court failed to treatthe endorsement made by the District Sub-Registrar on the body of thesale deed, as evidence in respect of the authority of Plaintiff No. 2 toexecute the sale deed. This is to be considered in light of the fact that atno point of time did the original owner namely, Braja Mohan Dey disputethe execution of power of attorney in favour of Plaintiff No. 2.

A29. Prima-facie, the endorsement made on the sale deed dated03[rd] September, 1968, could be considered as determinative evidence ofthe conveyance of title to the suit property by its original owner, especiallywhere the defendants have not set up case to establish any independenttitle over the suit property. When such presumption arises, the onuswould be on person who challenges such presumption, to successfullyBrebut it, vide Prem Singh and Ors. vs. Birbal and Ors., (2006) 5SCC 353. In that context, the question that would arise is, whether, thedefendants have rebutted the presumption of validity of the sale deeddated 03[rd] September, 1968. In order to answer this question, the followingfacts may be considered:C

(i)Trial Court and First Appellate Court have concurrentlyfound that the defendants do not have any title over the suitland and against such finding the defendants have notpreferred an appeal. They have thus accepted this findingwhich has attained finality.

(ii)The original owner namely, Braja Mohan Dey has notinitiated any proceeding to dispute the execution of powerof attorney in favour of Plaintiff No. 2.

(iii)The order of the Sadar Munsiff dated 17[th] July, 1974, inT.S. 69/1974 records that by way of sale deed dated 03[rd]ESeptember, 1968, Plaintiff No. 2 had purchased the suitproperty and was paying municipal taxes as the owner ofthe premises which finding is binding on the parties hereinas the same has not been upset by any Court of law. SaratChandra Majumdar, original defendant No. 1 in the presentFsuit, was the plaintiff therein.

(iv)Notwithstanding the fact that the original defendant hadbecome aware of the sale deed dated 03[rd] September, 1968and of the power of attorney that formed the basis of suchsale deed, no steps were taken by the Defendant toGchallenge Plaintiff No. 2’s title over the suit property. Itwas only in the written statement filed in the present suitthat it was vaguely claimed that Sarat Chandra Majumdarwas the title holder of the suit property and Plaintiff No. 2was tenant therein. This, without there being any legalbasis or evidence.

In light of the said facts, it can be stated that the defendant hasnot rebutted the presumption of validity of the sale deed dated 03[rd]September, 1968.

30. In short, there is no reason to disbelieve the recitals containedin the registered sale deed dated 03[rd] September, 1968 merely on theground that the document conferring power of attorney in favour ofplaintiff no. 2 was not produced before the Trial Court.

In the instant case, the High Court was therefore right in holdingthat when document has been duly registered, there is presumptionof correctness and it can be rebutted only by strong evidence to thecontrary. But the defendants have not led any evidence in order to rebutthe presumption as might be drawn on the basis of the said endorsementon the body of the sale deed No.1010394, dated 03.09.1968 acceptingoriginal plaintiff no.2 as the attorney of the original owner, Braja MohanDey. The same is vital piece of evidence which has been ignored bythe Trial Court as well as the first Appellate Court. The High Court isfurther right in holding that original plaintiff no.2 was duly nominated andconstituted as the attorney of Braja Mohan Dey (original owner of thesuit land) and on the strength of the said power of attorney, plaintiffNo.2 transferred land in favour of himself. As the absolute owner, plaintiffNo.2 sold the said land to plaintiff No.1. Thus, plaintiff no.1 had everyright to recover the said suit land, description of which has been providedin the Schedule (C) of the plaint by removing and demolishing allobstructions from the defendants. The High Court was therefore right indecreeing the suit.

Consequently, the present appeal is dismissed. The impugnedjudgment of the High Court of Tripura in Regular Second Appeal No. 01of 2005, by which, the judgment and decree dated 26[th] August, 2004passed in Title Appeal No. 02 of 1996 by the First Appellate Court inTitle Appeal No. 02 of 1996 affirming the dismissal of Title Suit No. 201of 1985 by the Asst. District Judge No.1, Tripura has been set-aside, isaffirmed.

31. Parties are directed to bear their respective costs.

Matter referred to larger Bench.

(Assisted by : Shashwat Jain, LCRA)