Orissa High Court
(From The Judgment And Decree Dated … vs Sai Educational And on 23 December, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.162 of 2020
(From the judgment and decree dated 31.8.2019 and
7.9.2019 respectively passed by learned Addl. District Judge,
Jagatsinghpur in R.F.A. No.12/2017)
Minaskshi Sahoo
... Appellant
-versus-
Sai Educational and
Charitable Trust and
others
... Respondents
Advocates appeared in the case through hybrid mode:
For Appellant : Mr.Om Prakash Das,
Advocate.
Mr. S. Palai, Advocate
-versus-
For Respondents
: Mr. Bibekanda Bhuyan,
Advocate.
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
23.12.2024.
Sashikanta Mishra,J. This is a plaintiff’s appeal against a
reversing judgment. The judgment dated 31.8.2019
R.S.A. No.162 of 2020 Page 1 of 24
followed by decree passed by learned Addl. District
Judge, Jagatsinghpur in R.F.A.No.12/2017 is
impugned whereby, the judgment dtd.21.1.2017
followed by decree passed by learned Sr. Civil Judge,
Jagatsinghpur, in Civil Suit No.222/2008 was
reversed.
2. For convenience, the parties are referred to as
per their respective status in the trial Court.
3. The original plaintiff, Sarat Ch. Sahoo (since
deceased), filed the suit for a declaration that the
registered sale deed No.90 dated 17.1.2008, the
registered power of attorney dtd.28.7.2007 and the
unregistered agreement dtd.24.7.2007 are illegal and
void, and for a permanent injunction.
The case of the plaintiff is that Sarat Ch. Sahoo,
a permanent resident of village Sampur in the district
of Jagatsinghpur, was an auto rickshaw driver by
occupation. His only son died in a motor accident in
the year 1999 and since then he and his wife became
R.S.A. No. 162 of 2020 Page 2 of 24
depressed. In the month of April, 2007, Defendant
No.1, while travelling in the auto rickshaw driven by
said Sarat Ch.Sahoo from Jagatsinghpur to Jaipur
came to know about his mental condition and that he
has land measuring Ac.1.04 decs. in Jagatsinghpur-
Jaipur road. The defendant No.1 thus gained the faith
of the original plaintiff and his wife and requested for
leasing out the said land for establishing an
Engineering College wherein a room would be provided
in the ground floor of the proposed building to him
and his younger daughter would be given a job in the
College. The original plaintiff, on good faith executed
an unregistered agreement on 24.7.2007. On
28.7.2007 on the advice of Defendant No.1, the original
plaintiff accompanied him to Bhubaneswar and
executed a power of attorney in his favour in the office
of DSR, Bhubaneswar for constructing Engineering
College building over the suit land. Subsequently,
when the plaintiff came to know about the Mutation
Case No.295/2008, he enquired from the Tahasil Office
at Jagatsinghpur and was informed that Defendant
R.S.A. No. 162 of 2020 Page 3 of 24
No.1 had fraudulently and deceitfully managed to
create a sale deed in favour of his wife Defendant No.2
in respect of the suit land on the basis of the power of
attorney dtd.28.7.2007.He therefore, approached the
Defendant No.1 in his local office along with some local
persons and registered his protest whereupon the
defendant No.1 handed over the xerox copy of the
unregistered agreement dtd.24.7.2007 and registered
power of attorney to the plaintiff. Upon going through
the contents of the documents, the plaintiff could know
about the fraud played by defendant No.1 upon him.
The defendant No.1 had himself purchased stamp
paper of the power of attorney in the name of the
original plaintiff by forging his signature and scribed
the same with assistance of his henchmen. He also
created official endorsement and the finger impression,
signature of the original plaintiff and of the attesting
witness on the back side of the first page. The original
plaintiff did not have any address at Bhubaneswar but
the power of attorney was executed showing a
temporary address at Bhubaneswar. Defendant No.2 is
R.S.A. No. 162 of 2020 Page 4 of 24
the wife of Defendant No.1 and trustee of the same
institution. So, the sale of the suit land by Defendant
No.1 in favour of defendant no.2 for the financial
assistance of the development of the educational trust
is a nominal document. After coming to know of such
facts, the plaintiff filed a complaint case bearing
No.77/2008 in the Court of learned S.D.J.M.,
Jagatsinghpur which is pending investigation by the
Police being directed by the Court. The original plaintiff
thereafter obtained certified copies of the relevant
documents and filed the suit. The Defendant No.2 had
filed C.S.No.222/2008 in the Court of learned Civil
Judge (Jr. Division), Jagatsinghpur seeking the relief of
permanent injunction against the plaintiff, but the
same was dismissed on 02.1.2013. It is the further
case of the plaintiff that he was in peaceful cultivating
possession of the suit land even after execution of the
sale deed in question. The original plaintiff died during
pendency of the suit. After his death, his wife was
substituted as plaintiff and his two daughters were
impleaded as Defendant Nos.4 and 5.
R.S.A. No. 162 of 2020 Page 5 of 24
4. Defendant Nos.1 and 2 contested the suit by
filing a joint written statement. It is stated that the
original plaintiff entered into an agreement with
Defendant No.1, who is the Secretary of the Trust on
24.7.2007 to sell the suit land in favour of the Trust
due to want of money. He, being the Karta of the family
executed the registered power of attorney by deed
No.1010 dtd.28.7.2007 in favour of Defendant No.1 in
the office of Sub-Registrar, Bhubaneswar authorizing
him to sell the suit land and to construct an
educational building. The original plaintiff being an
educated person signed both the documents after
understanding the contents thereof and had also
purchased the stamp paper in his own name. The
Defendant No.1, as power of attorney holder, executed
the sale deed in favour of Defendant No.2 for
consideration of Rs.4,33,680/- and delivered
possession. Since the plaintiff obstructed her in
construction of the College building, Defendant No.2
filed C.S. No.222/2008 and further set up his
daughters to file another suit being C.S. No.5/2009. It
R.S.A. No. 162 of 2020 Page 6 of 24
is the further case of the defendants that the suit land
is the self-acquired property of the original plaintiff for
which, his daughters have no right, title, interest or
possession over the same. In the meantime, the
defendants have converted the suit land to homestead
land and gathered building materials for construction
of the education building.
5. The Defendant No.3 also contested the suit by
filing a separate written statement. It is stated that she
purchased the suit land from defendant No.2 on valid
consideration and due delivery of possession. Since
then, he is possessing the suit land peacefully. It is his
further case that the original plaintiff admitted his
signature in the registered power of attorney, which
has been executed in the name of Defendant No.1.
As per the resolution of the trust, in order to meet the
financial problem, Defendant No.1 alienated the entire
suit property in favour of Defendant No.2 by executing
the sale deed and also gave delivery of possession in
her favour.
R.S.A. No. 162 of 2020 Page 7 of 24
6. Defendant No.4 contested the suit by filing a
separate written statement. She stated that she being
the daughter of the original plaintiff, has a right over
the suit land as the same is the ancestral property of
her father. She also stated that Defendant No.1, by
practicing fraud obtained the unregistered agreement
for sale and the registered power of attorney.
Defendant Nos.4 and 5 have never authorized
Defendant No.1 to convert the suit land into
homestead land. It is also stated that despite the
aforementioned documents, the Defendant Nos.4 and 5
are in joint cultivating possession with their mother till
now.
7. Defendant No.5 also contested the suit by filing
separate written statement-cum-counter claim. She
supported the relief claimed by her father in the suit by
stating that it is their ancestral property and recorded
in the name of her father. After his death, Defendant
Nos.4 and 5 and their mother have 1/3rd share each.
The suit property was never partitioned among them.
R.S.A. No. 162 of 2020 Page 8 of 24
They are in joint possession by raising paddy crops
and enjoying the usufructs equally. Her father was
hostile towards Defendant No.4 and since the
Defendant No.5 supported her, her father was also
hostile to her. Under such circumstances her father
had executed the unregistered agreement for sale and
the registered power of attorney in favour of the
Defendant No.1 without the knowledge and consent of
Defendant Nos.4 and 5, which are illegal in the eye of
law. As such, the same is not binding on them.
Further, the consideration amount mentioned in the
sale deed is very low as compared to the market price.
She also stated that her father had no address at
Bhubaneswar, which was fraudulently mentioned by
Defendant No.1 in the registered power of attorney.
Defendant No.5 also raised a counter claim for
partition of the suit property and allotment of 1/3rd
share thereof.
Plaintiff filed a written statement to the counter
claim by submitting that the suit land was acquired by
R.S.A. No. 162 of 2020 Page 9 of 24
one Bairagi Sahoo, who is the grandfather of the
original plaintiff. After death of Bairagi Sahoo, his
son Dharmananda and the original plaintiff were
possessing the suit land. Though the suit land was
recorded in the name of the original plaintiff but she
and Defendant Nos.4 and 5 are jointly possessing the
same according to the law of succession. The plaintiff
is maintaining herself out of the usufructs of the suit
land and therefore, if it is partitioned at the instance
of Defendant No.5, she will not be able to maintain
herself as she has no other source of income.
8. Basing on the rival pleadings, the trial court
framed the following issues for determination;
“1. Is the suit maintainable in the eye of law as well
as facts?
2. Is there any cause of action to file the suit?
3. Is the suit hit under the provisions of estoppel
and resjudicata?
4. Are the registered power of attorney
dtd.28.07.2007 and unregistered agreement
dtd.24.07.2007 and the registered sale deed
dtd.17.01.2008 are illegal and void documents
which are obtained by practising fraud and not
binding upon the plaintiff?
5. Is the plaintiff entitled to the relief prayed for?
6. To what other relief the plaintiff is entitled ?
Additional Issues
R.S.A. No. 162 of 2020 Page 10 of 24
7. Is the counter claim for partition by defendant
No.5 is maintainable?
8. Is the suit schedule properties are partiable in
nature?
9. Is the defendant No.5 is entitled to 1/3rd share
from the suit land in case of partition?
10. To what other reliefs, the defendant No.5 is
entitled?”
9. Taking up Issue No.4 for consideration at the
outset, the trial Court examined the pleadings of the
parties and the evidence adduced by them and took
up for determination the question, whether the
transaction between the deceased-plaintiff and
defendant No.1 is genuine or sham and bogus. After
analyzing the facts and evidence, the trial Court found
that the unregistered agreement dted.24.7.2007 was
never acted upon and therefore, not relevant. As
regards the registered power of attorney dtd.28.7.2007,
the trial Court found that as per the recitals of the
document and the evidence adduced, it is evident that
agreement was entered between the original plaintiff
and Defendant No.1 only for construction of
Engineering College over the suit land and nothing
else. There was nothing in the power of attorney
authorizing the Defendant No.1 to sell the suit land.
R.S.A. No. 162 of 2020 Page 11 of 24
That apart, the power of attorney was executed in
favour of Defendant No.1 in the capacity of Managing
Trustee-cum- Secretary of the Trust and not in his
personal capacity. Moreover, the legal necessity of the
original plaintiff to sell the land was not proved. Thus,
the trial court held that there is reasonable doubt as
regards the genuineness and bonafides of the
execution of the power of attorney. The trial Court
further found that Defendant No.1 as attorney holder
sold the suit land to Defendant No.2, who is none else
than his wife and another trustee of the Trust for the
purpose of meeting the financial assistance for
development of educational purpose. It was also found
that the power of attorney was neither executed nor
authenticated by the Registrar or Sub-Registrar within
the territorial jurisdiction of which the original plaintiff
resided. Defendant No.1 also failed to prove the
temporary address of the original plaintiff mentioned in
the power attorney. On these facts, the trial Court
therefore, held that Defendant No.1 had obtained the
power of attorney by practicing fraud and
R.S.A. No. 162 of 2020 Page 12 of 24
misrepresentation and therefore, the sale deeds
executed by him subsequently are nominal documents.
Moreover, a power of attorney holder cannot use the
same for his own benefit as per the settled position of
law. The main issue being answered in the above
manner, the remaining issues were answered
accordingly in favour of the Plaintiff. The counter claim
filed by Defendant No.5 was rejected for non-inclusion
of all the properties belonging to the family in the
hotchpot, the same being a claim for partial partition.
The suit was thus decreed by granting all reliefs as
claimed by the plaintiff.
10. Being aggrieved, the Defendant Nos.1 to 3
carried the matter in appeal to the District Court on
the ground that no fraud was played at any time and
that the trial Court did not correctly appreciate the
evidence on record. The First Appellate Court took
note of the settled positon of law that in case of fraud,
undue influence and coercion a party had to set forth
full particulars thereof in his pleadings. Thereafter, the
R.S.A. No. 162 of 2020 Page 13 of 24
First Appellate Court took note of the position of law
that once a document is properly admitted, the
contents thereof are also admitted in evidence. The
First Appellate Court then looked at the evidence of
D.W.1 and held that the same indicated that the
contents of the documents were read over and
explained to him which corroborates the averments in
the sale deed, which shows that he was aware of the
execution of the sale deed and no fraud was practiced
by him. He further admitted that he has been provided
with a room. It was also held that as the Plaintiff had
signed on the power of attorney and the unregistered
agreement in English, it proves that he is a literate
person conversant with such language and therefore,
it cannot be said that any fraud was played by the
Defendants. Referring to the provision of Section 33 of
the Registration Act and the principle of law settled by
the Supreme Court, the First Appellate Court held that
the original plaintiff had purchased the stamp paper at
Bhubaneswar on 27.7.2007 where he resided
temporarily for 2 days for the purpose of registration of
R.S.A. No. 162 of 2020 Page 14 of 24
the General Power of Attorney. The First Appellate
Court rejected the evidence of the wife of the original
plaintiff on the ground that she had not seen taking of
money by her husband. Basically on the above
findings, the First Appellate Court allowed the appeal
by reversing the judgment of the trial Court.
11. The Plaintiff has filed this appeal against the
judgment of the First Appellate Court, which was
originally admitted on the following substantial
question of law;
“Whether the learned First Appellate Court
has correctly interpreted the law that
when a document is admitted in evidence
without objection the contents of the said
documents are admitted?”
However, in course of hearing, the following
substantial question of law was also framed;
“Whether the First Appellate Court was
correct in deciding the appeal without
framing points for determination as
required under the provisions of Order 41,
Rule 31 CPC ?”
12. Heard Mr. Om Prakash Das, learned counsel for
the Plaintiff-appellant and Mr. Bibekananda Bhuyan,
R.S.A. No. 162 of 2020 Page 15 of 24
learned counsel appearing for the defendant-
Respondents.
13. Mr. Das would argue that the First Appellate
Court has dealt with the matter entirely on erroneous
premises by treating the power of attorney as a sale
deed. Further, the finding of the First Appellate Court
is contrary to the evidence on record. In view of the
specific findings rendered by the trial Court and the
ground of challenge thereto, it was incumbent upon
the First Appellate Court to have framed specific points
for determination as required by the provision under
Order 41, Rule 31 of C.P.C. The findings of the First
Appellate Court regarding the fraud played by the
defendants and the circumstances under which the
power of attorney was executed were not considered at
all by the First Appellate Court.
14. Per contra, Mr. Bhuyan has argued that if all
questions involved in the appeal have been answered,
the judgment of the First Appellate Court cannot be
interfered with only for non-compliance of the
R.S.A. No. 162 of 2020 Page 16 of 24
provision under Order 41, Rule 31 of C.P.C. On
merits, Mr. Bhuyan would argue that the burden of
proving fraud being heavy on the person who alleges it,
the plaintiff in the instant case signally failed to do so.
He being an educated person had signed in English
and also admitted in his cross examination that he had
understood the contents of the agreement before
signing it. Merely on an allegation of fraud the
presumption attached to the power of attorney under
Section 85 of the Evidence Act cannot be rebutted. The
evidence clearly shows that the plaintiff himself
accompanied the Defendants for execution of power of
attorney and registration of agreement, which was
ignored by the trial Court.
15. In view of the grounds raised, this Court deems
it proper to take up the second substantial question of
law for determination at the outset, which is as follows;
“Whether the First Appellate Court was
correct in deciding the appeal without
framing points for determination as
required under the provisions of Order
XLI, Rule 31 CPC ?”
R.S.A. No. 162 of 2020 Page 17 of 24
16. It would be apposite to refer to the provision
which reads as follows;
“Order XLI Rule 31-The judgment of the appellate
court shall be in writing and shall state (a) the points
for determination, (b) the decision thereon, (c) the
reasons for the decision, and (d) where the decree
appealed from is reversed or varied, the relief to
which the appellant is entitled.”
17. It is well settled that compliance of this provision
is mandatory and its non-compliance makes the
judgment vulnerable to challenge. The Supreme Court
in the case of B.V. Nagesh Vs. H.V. Sreenivasa
Murthy; reported in (2010) 13 SCC held as follows;
“4.The appellate court has jurisdiction to
reverse or affirm the findings of the trial court.
The first appeal is a valuable right of the
parties and unless restricted by law, the whole
case is therein open for rehearing, both on
questions of fact and law. The judgment of the
appellate court must, therefore, reflect its
conscious application of mind and record
findings supported by reasons, on all the issues
arising along with the contentions put forth,
and pressed by the parties for decision of the
appellate court. Sitting as a court of first
appeal, it was the duty of the High Court to
deal with all the issues and the evidence led by
the parties before recording its findings. The
first appeal is a valuable right and the parties
have a right to be heard both on questions of
law and on facts and the judgment in the first
appeal must address itself to all the issues of
law and fact and decide it by giving reasons in
support of the findings (Vide Santosh Hazari v.
Purushottam Tiwari [Santosh Haturi
Purushottam Tiwari, (2001) 3 SCC 179), SCC p.
188, para 15 and Madhukurv SangramR.S.A. No. 162 of 2020 Page 18 of 24
Madhukar v Sangram, (2001) 4 SCC 756), SCC
p. 758 Para 5).”
Further, the Supreme Court in the case of
UPSRTC Vs. Mamta & Ors reported in (2016) 4 SCC
172 set aside the judgment of the Hon’ble High Court
in a First Appeal for non-compliance of Order XLI Rule
31 of the CPC and the matter was remanded back. The
Supreme Court in the aforesaid case held as follows;
“24. As observed supra, as a first appellate
court, it was the duty of the High Court to have
decided the appeal keeping in view the powers
conferred on it by the statute. The impugned
judgment [U.P. SRTC v. Mamta, 2014 SCC
Online All 14830) also does not, in our opinion,
satisfy the requirements of Order 20 Rule 4(2)
read with Order 41 Rule 31 of the Code which
requires that judgment shall contain a concise
statement of the case, points for determination,
decisions thereon and the reasons. It is for this
reason, we are unable to uphold the impugned
judgment of the High Court.”
18. On the contrary Mr. Bhuyan contends that if the
First Appellate Court has considered all the materials
referred to by the trial Court in its judgment, it can
forego the mandate of Order 41 Rule 3 of C.P.C. In
this context, Mr. Bhuyan has relied upon the judgment
of the Apex Court rendered in the case of
R.S.A. No. 162 of 2020 Page 19 of 24
G. Amalorpavam & Ors. Vs. R.C. Diocese of
Madurai & Ors; (2006) 3 SCC 224.
19. So the legal position that emerges from the
authorities cited at the bar is that ordinarily, the
provision under Order 41, Rule 31 is mandatory. But if
the Appellate Court, without framing specific points for
determination has nonetheless considered all the
grounds involved, then the judgment cannot be
questioned on the ground of non-compliance of the
provision.
20. Tested on the touchstone of the position of law as
referred to hereinbefore, this Court finds that the trial
Court had rendered specific findings on each of the
issues framed by it, with the Issue No.4 being the
central issue. The trial Court has further given specific
reasons as to why the unregistered agreement
dtd.24.7.2007 was not considered relevant and for
doubting the genuineness of the registered power of
attorney. All such findings are based on the pleadings
and evidence adduced by the parties. It is the specific
R.S.A. No. 162 of 2020 Page 20 of 24
finding that the power of attorney authorized
Defendant No.1 to construct educational building like
Engineering, Medical, MBA, MCA College, etc. over the
suit land without any recital regarding sale of the suit
land. That apart, the stamp paper was purchased in
the name of the original plaintiff showing his address
at Sampur, Jagatsinghpur on 27.7.2007, but the
registration was done on 28.7.2007 by the DSR,
Bhubaneswar by showing his address at
Bhubaneswar, which was projected as his temporary
address. There is also an endorsement made by the
DSR on the instrument regarding address of the
original plaintiff. Taking all such facts into
consideration, the trial Court held that the power of
attorney is not a genuine document. The sale of the
suit land by Defendant No.1 as power of attorney
holder to Defendant No.2, who is a trustee of the very
same trust and the wife of Defendant No.1, was
reason enough for the trial Court to suspect the
genuineness thereof. The trial Court was guided by the
judgment of this Court reported in OLR 2002 (2) 504
R.S.A. No. 162 of 2020 Page 21 of 24
wherein, it was held that the power or attorney holder
cannot use the power of attorney for his own benefit.
All these aspects and findings of the trial Court have
not been gone into at all by the First Appellate Court
who, without framing the specific points for
determination decided the appeal somewhat
superficially. As such, it cannot be held that the First
Appeal was decided correctly and in consonance with
the statutory provisions. Since there is an allegation of
fraud and a finding has been given by the trial Court, it
is incumbent upon the First Appellate Court to cite the
grounds for holding that such findings were incorrect.
Such an exercise was not done by the appellate Court
at all. What is more surprising is that despite the
pleadings and the evidence adduced, the First
Appellate Court held that the power of attorney and the
sale deed were admitted into evidence being marked
without any objection.
21. For all the above reasons, this Court is of the
considered view that the points involved in the appeal
R.S.A. No. 162 of 2020 Page 22 of 24
were not decided properly by the First Appellate Court.
As such, this Court holds that non-compliance of the
provision under Order 41, Rule 31 of C.P.C. by the
First Appellate Court in the impugned judgment is
fatal. The question of law framed is answered
accordingly.
22. In view of the findings on the above substantial
question of law, it is evident that the appeal needs to
be heard afresh taking into consideration all the issues
involved for proper adjudication of the dispute between
the parties. While giving its own findings, the First
Appellate Court has not really explained as to how the
findings of the trial Court are incorrect or wrong so as
to justify the order of reversion. In the circumstances,
there is no other option than to remit the matter to the
First Appellate Court for hearing afresh.
23. For the foregoing reasons therefore, the appeal is
allowed. The impugned judgment and decree are
hereby set aside. The matter is remanded to the First
Appellate Court to decide the appeal afresh by framing
R.S.A. No. 162 of 2020 Page 23 of 24
specific points for determination in terms of the
provision of Order 41, Rule 31 of Cr.P.C. and on the
basis of the evidence already adduced by the parties.
The suit being of the year 2008, the First Appellate
Court shall do well to decide the appeal as early as
possible, preferably within a period of four months
from the date of communication of this order.
24. The L.C.R. be sent back forthwith.
…………………………….
Sashikanta Mishra,
Judge
Ashok Kumar Behera
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Designation: A.D.R.-cum-Addl. Principal Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 23-Dec-2024 12:14:42
R.S.A. No. 162 of 2020 Page 24 of 24