REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2965 OF 2022

Manik Majumder and Others …Appellants

Versus

Dipak Kumar Saha (Dead) through Lrs. & Others …Respondents

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 05.04.2018 passed by the High Court of Tripura at

Agarthala in Regular Second Appeal No. 01/2005, by which the High

Court has allowed the said appeal preferred by the original plaintiffs and

has decreed the suit by quashing and setting aside the concurrent

findings recorded by both the courts below, the original defendants have

preferred the present appeal.

1

Digitally signed by

Neetu Sachdeva

Date: 2023.05.24

12:59:27 IST

Reason:

Signature Not Verified 2023 INSC 34

2. The facts leading to the present appeal in a nutshell are as under:

That one Braja Mohan Dey was the owner and in possession of

‘Schedule A’ property. He was alleged to have taken a loan of Rs.

10,000/- from his tenant, namely, Dhirendra Chandra Saha, original

plaintiff No.2. The original owner, Braja Mohan Dey went to East

Pakistan. It was alleged that he had executed a Power of Attorney

(PoA) in East Pakistan, ostensibly in favour of original plaintiff No.2 to

enable repayment of the alleged loan amount by sale of the subject land

to himself (original plaintiff No.2) as his PoA holder. That original plaintiff

No.2, on the basis of the alleged loan amount and PoA alleged to have

been executed by the original owner, executed in his favour sale deed

dated 3.9.1968 as PoA holder of the original owner. Thereafter original

plaintiff No.2, by virtue of the said PoA, transferred ‘Schedule A’ property

to his wife Gita Rani Saha (original plaintiff No.1) (now deceased) vide

sale deed dated 29.09.1968, allegedly for repayment of a sum of Rs.

20,000/- taken by him from his wife, out of which a sum of Rs. 10,000/-

was alleged to have been handed over to the original owner Braja

Mohan Dey.

2.1 That original plaintiff No.2 allegedly constructed a godown at the

rear end of the grocery shop in another part of ‘Schedule A’ property

(‘Schedule C’ property). It was the case on behalf of the plaintiffs that

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one Sarat Chandra Majumdar (original defendant No.1) tried to

dispossess the plaintiffs from the said ‘Schedule C’ property. However,

on the other hand, it was the case on behalf of the defendants that their

predecessor-in-interest held out that Sarat Chandra Majumdar was in

possession of the suit land for more than thirty years and was running a

business from the said property, while denying that the plaintiffs had

acquired any right, title or interest as claimed over the suit land. The

original defendants also claimed to be in peaceful possession of the

property for over forty years and it was their case that they were paying

the municipal taxes and land revenue and other statutory dues. The

plaintiffs alleged that the defendants had started a pucca construction on

‘Schedule C’ property and forcibly dispossessed them from the said

property. Therefore, the plaintiffs filed a Civil Suit being T.S. No.

201/1985 before the learned trial Court for a declaration of title over the

suit land and recovery of khas possession from the defendants

(appellants herein).

2.2 The said suit was resisted by the defendants by filing a written

statement denying all the allegations as well as their right of possession

in respect of the disputed suit property. At this stage, it is required to be

noted that though the original plaintiff No.2 claimed the ownership on the

basis of the sale deed dated 3.9.1968 executed by plaintiff No.1 in his

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own favour on the basis of the alleged PoA executed by the original

owner, however, the same was not produced before the learned trial

Court and in the suit.

2.3 The learned trial Court vide its judgment and decree dated

11.09.1995 dismissed the suit and held that the plaintiffs were not

entitled to relief sought as no right, title or interest was established in

favour of plaintiff No.2, inter alia, for want of PoA for proper execution of

the sale deed in his favour. At this stage, it is required to be noted that

issue No.6 was, “have the plaintiffs proved their alleged right, title and

interest in the suit land?”. The learned trial Court also held that the sale

deeds in favour of plaintiff No.2 and plaintiff No.1 respectively did not

have the endorsements of the Sub-Registrar that it was executed by the

PoA of Braja Mohan Dey (original owner) and further that even in an

earlier suit between plaintiff No.2 and Sarat Chandra Majumdar, the said

PoA was not produced. The learned trial Judge also came to the

conclusion that the provisions of Section 33(1)(c) of the Registration Act,

1908 have not been complied with, when according to the plaintiffs the

alleged PoA was executed at Kumilla, East Pakistan, now Bangladesh,

which is a foreign country.

2.4 Feeling aggrieved and dissatisfied with the judgment and decree

passed by the learned trial Court dismissing the suit, the original

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plaintiffs preferred an appeal before the first appellate Court. In the

appeal before the first appellate Court, the plaintiffs filed an application

under Order 6 Rule 17 CPC for amendment of the plaint in T.S. No.

201/1985. The amendment sought for was to the effect that the missing

PoA, i.e., the fulcrum of the case was allegedly handed over by the

plaintiffs to original defendant No.1 and that despite demands, he never

returned the same. Vide order dated 31.01.1998, the first appellate

Court rejected the prayer for amendment of the plaint by observing that

allowing the amendment at that stage would mean a remand of the suit

for fresh trial. That after framing the points for consideration, the first

appellate Court dismissed the appeal and confirmed the judgment and

decree passed by the learned trial Court dismissing the suit. The first

appellate Court also found that though plaintiff No.2 had acquired title

over the suit land on the basis of the sale deed executed by him in his

favour on the basis of the PoA alleged to have been executed by its true

owner Braja Mohan Dey, but failed to produce the same before the Court

and as such in the absence of PoA, genuinity of the sale deed dated

3.9.1968 cannot be presumed to be correct and on the basis of that sale

deed, subsequent sale deed dated 29.09.1968 in favour of plaintiff No.1

by plaintiff No.2 also cannot be treated as genuine.

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2.5 Feeling aggrieved and dissatisfied with the judgment and order

passed by the first appellate Court dismissing the appeal and confirming

the judgment and decree passed by the learned trial Court dismissing

the suit, the plaintiffs preferred the second appeal before the High Court

under Section 100 CPC.

2.6 In the Second Appeal, the High Court, while admitting the appeal,

framed the following substantial question of law:

“Whether a sale deed executed by the attorney of the

vendor can be challenged by a third party only on the

ground that the attorney executive in the deed was not duly

authorised by a power of attorney.”

Subsequently, the High Court reframed the following substantial

questions of law:

“1) Whether the endorsement made on the sale deed

No.1-10394 dated 3.9.1968 [Exbt.11] in respect of the

power of attorney is substantive evidence in respect of the

power of attorney authorising the plaintiff No.2 to sell the

said land as demised in the sale deed dated 3.9.1968?

2. Whether the defendants had fundamental onus to

discharge in respect that the power of attorney was not in

existence or forged and as such, the sale deed dated

3.9.68 cannot be treated as the instrument of a valid

transfer?”

2.7 By the impugned judgment and order, the High Court has allowed

the second appeal No. 01/2005 by setting aside the concurrent findings

recorded by the courts below by drawing a statutory presumption in

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respect of existence of PoA by virtue of endorsement. While holding so,

the High Court has considered Section 33(1)(c) of the Registration Act.

Consequently, the High Court has decreed the suit and has directed the

appellants – original defendants to handover the vacant possession of

the suit land to the original plaintiffs.

2.8 Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court allowing the second appeal and

quashing and setting aside the judgments and orders of the courts below

dismissing the suit and consequently decreeing the suit in favour of the

original plaintiffs, the original defendants have preferred the present

appeal.

3. Shri Rana Mukherjee, learned Senior Advocate has appeared on

behalf of the appellants – original defendants and Shri Hrishikesh

Baruah, learned Advocate has appeared on behalf of the original

plaintiffs.

3.1 Learned counsel appearing on behalf of the appellants – original

defendants has vehemently submitted that the High Court has committed

a serious error in law by setting aside the concurrent findings of the

courts below in the second appeal. This is particularly when both the

courts below concurrently found that plaintiff No.2 is alleged to have

acquired title over the suit land on the basis of the sale deed dated

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3.9.1968 executed by him in his own favour on the basis of the PoA

executed by its true owner Braja Mohan Dey, but failed to produce the

same before the Court and as such in the absence of PoA, genuinity of

the sale deed dated 3.9.1968 cannot be presumed to be correct. Further,

on the basis of the sale deed dated 3.9.1968, subsequent sale deed

dated 29.09.1968 in favour of plaintiff No.1 by plaintiff No.2 also cannot

be treated as genuine. Therefore, the very execution of the sale deed

dated 3.9.1968 is doubtful and it cannot be said that the same has been

executed validly.

3.2 It is further submitted that the High Court, while drawing a statutory

presumption, has failed to consider that when execution of the sale deed

is doubtful and the cloud over the execution has not been cleared, no

statutory presumption could be drawn in respect of existence or

regularity of the PoA by virtue of an endorsement, when the PoA which

was allegedly executed in a foreign country could not be produced and

execution of the PoA has been done contrary to Section 33(1)(c) of the

Registration Act.

3.3 It is submitted that the High Court has erroneously relied on the

judgment of this Court in the case of Prem Singh and others v. Birbal

and others, (2006) 5 SCC 353. Relying upon the aforesaid decision, the

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High Court has seriously erred in holding that there is a presumption that

“a registered document is validly executed”.

3.4 It is further submitted that despite the original plaintiffs having sale

deeds in their favour, plaintiff No.1 sought a declaration of the title. It is

submitted that assuming that the plaintiffs were dispossessed from

‘Schedule C’ property of which relief was claimed, then an

application/proceeding under Section 6 of the Specific Relief Act could

have also been filed, which was not done because the plaintiffs in the

suit knew that there was a cloud in their title to the suit land.

3.5 It is urged that even the original owner of the land, Braja Mohan

Dey, who was alleged to have executed the missing PoA, was never

made a party to the suit. He was neither a party to the suit nor was

examined as one of the witnesses by the trial Court in support of the

case of the plaintiffs. It is submitted that even the sale deeds executed

by virtue of the said PoA were not proved by examining the registering

authorities or by production of documents registering such sale.

3.6 Now so far as the effect of Section 33(1)(c) of the Registration Act,

it is submitted that insofar as the PoA was concerned, no evidence was

led to the effect that the same was in compliance of the provisions of

Section 33(1)(c) of the Registration Act. It is urged that as such the trial

Court has observed that the plaintiffs had not produced the PoA before

9

the Court and there was no explanation/averment made in the plaint for

such non-production. It is submitted that even the subsequent

conduct/attempt on the part of the plaintiffs seeking amendment of the

plaint before the first appellate Court deserves consideration. It is

submitted that having found that non-production of the PoA by the

plaintiffs would come in their way, and in fact had gone against them, the

plaintiffs tried to make out altogether a new case by averring that the

copy of the PoA was handed over to original defendant No.1 and despite

several requests, he never returned the same. It is submitted that the

same was never the case of the plaintiffs when the suit was filed and

there was no such amendment prayed in the plaint.

3.7 Learned counsel appearing on behalf of the appellants has heavily

relied upon the decision of this Court in the case of H. Siddiqui v. A.

Ramalingam (2011) 4 SCC 240 (paras 13 & 15) in support of his

submission that once the issue of alleged PoA was raised, the High

Court ought not to have decided the second issue framed by it in that

case without deciding on the first issue, i.e., that of impact of non-

production of the PoA and its existence thereof. It is submitted that in

the present case, the High Court ought to have decided the issue of non-

production of PoA by the plaintiffs in the first instance and then would

have drawn the statutory presumption.

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3.8 It is further submitted that in the present case, the learned trial

Court also specifically observed that no endorsement was made by the

Sub-Registrar on the documents in compliance with Section 26 and

Section 58 of the Registration Act. It is contended that it was neither

stated in the deed that the plaintiff has the PoA by which he was

empowered to execute the deed in his favour nor was an averment made

in the plaint to that effect. It is submitted that the evidence produced by

the plaintiffs, i.e., two sale deeds dated 3.9.1968 and 29.9.1968 based

on the purported PoA, has not been proved by production of official

records or through the Registrar being examined as a witness. It is

urged that the PoA is the fulcrum of the case on which the plaintiffs were

claiming their rights, the plaintiffs never produced in any form. It is

further urged that it was incumbent on the part of the plaintiffs to produce

PoA as the plaintiffs in the suit were having their rights, title or interest

through the PoA which is the basic document.

3.9 Learned counsel appearing on behalf of the appellants has further

submitted that Sections 101 to 103 of the Indian Evidence Act provides

that a party who avers the title must prove the title and that such a party

is not relieved of the onus. It is submitted that in the present case even

the plaintiffs had not discharged their initial burden of proving the title.

Reliance is placed upon the decision of this Court in the cases of Anil

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Rishi v. Gurbaksh Singh (2006) 5 SCC 558; and Sebastio Luis

Fernandes v. K.V.P. Shastri (2013) 15 SCC 161.

3.10 It is further submitted that Section 65 of the Indian Evidence Act

provides for circumstances under which secondary evidence may be

given without filing primary evidence. It is submitted that in the present

case the plaintiffs have failed to prove the primary evidence, i.e., PoA on

the basis of which the secondary evidence, i.e., the sale deeds were

executed. Reliance is placed on the decision of this Court in the case of

J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730. It is submitted that

therefore in the absence of the principal evidence (PoA), the significance

of the two sale deeds, produced by the plaintiffs is diluted.

3.11 It is further contended that in the impugned judgment and order,

the High Court while holding against the appellants and upsetting the

concurrent findings of the courts below, inter alia, has held that there was

a statutory presumption in favour of the plaintiffs insofar as the PoA is

concerned. It is submitted that the said finding is erroneous inasmuch as

the statutory presumption would not be available to the plaintiffs and the

documents in question since the document (PoA) itself has not been

produced before the courts below to ascertain whether the document

was in order or in compliance of Section 33(1)(c) of the Registration Act.

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3.12 Learned counsel appearing on behalf of the appellants has also

relied upon the decisions of this Court in the case of Rajni Tandon v.

Dulal Ranjan Ghosh Dastidar (2009) 14 SCC 782; and recent decision

of this Court in the case of Amar Nath v. Gian Chand 2022 SCC

OnLine SC 102, in support of his submission on Section 33 (1)(c) of the

Registration Act.

3.13 Making the above submissions and relying upon the aforesaid

decisions, it is vehemently submitted that the High Court has erred in

allowing the second appeal and quashing and setting aside the

concurrent findings of the courts below and thereby decreeing the suit

while exercising the power under Section 100 CPC. Therefore, it is

prayed to allow the present appeal and set aside the impugned judgment

and order passed by the High Court and restore the judgment and

decree passed by the learned trial Court.

4. The present appeal is opposed by Shri Hrishikesh Baruah, learned

counsel appearing on behalf of the respondents – original plaintiffs.

4.1 It is vehemently submitted that the land which is in possession of

defendant No.1 is founded on the title of plaintiff No.1 based on the sale

deed dated 3.9.1968 which has been executed on the basis of the PoA

in favour of plaintiff No.2. It is submitted that therefore the defendants

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are not entitled in law as well as in equity to raise a dispute about the

existence of the same.

4.2 It is submitted that as such the original defendants tried to take

forceful possession of ‘Schedule C’ property by breaking the godown and

taking away the goods. Plaintiff No.2 informed the concerned police

station and thereafter made a prayer before the Court of the SDM,

Sardar for drawing up proceedings under Section 144 Cr.P.C. On a

police enquiry report, proceedings under Section 144 Cr.P.C. were

started. During the proceedings, a prohibitory order was passed. The

defendants entered the possession of ’Schedule C’ property. It is

submitted that, in fact, the learned Executive Magistrate directed the

defendants to vacate the ‘Schedule C’ property/land and handover the

same to the plaintiffs. However, in the revision petition filed by the

defendants, the learned revisional Court set aside the same on technical

grounds. The plaintiffs approached the High Court by way of revision

petition. The High Court disposed of the case by directing that the

plaintiffs can initiate a fresh case under Section 145 Cr.P.C. regarding

the ‘Schedule C’ property. It is submitted that thereafter the plaintiffs

filed a petition under Section 145 Cr.P.C. However, on 27.09.1985, as

the defendants started construction of a pucca structure on ‘Schedule C’

property, the plaintiffs were constrained to file the suit.

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4.3 It is submitted that as such the High Court has rightly drawn the

statutory presumption in favour of the plaintiffs. It is submitted that as

observed and held by the High Court, the defendants have not led any

evidence to rebut the presumption. It is submitted that as there was an

endorsement in the sale deed and that it is a vital piece of evidence, the

High Court has not committed any error in drawing the statutory

presumption.

4.4 It is further submitted that Part VI of the Registration Act deals with

presenting documents for registration. Section 32 contemplates that only

those persons mentioned in clause (c) are entitled to present documents

for registration. In case the PoA holder himself executes the sale deed,

then for the purpose of registration he is considered to be a person

falling under Section 32(a) of the Registration Act. He is not even

required to produce the PoA (although in the present case the PoA was

produced and the requisite endorsement was made). It is submitted that

sub-clause (c) contemplates presentation of a document for registration

by a PoA holder of a PoA holder. It is submitted that Section 33 further

provides as to which PoA holders will be recognised for the purpose of

Section 32. Sub-clause (c) provides for a case where the principal is not

residing in India. It is submitted that in that case, the PoA executed has

to be authenticated by the concerned persons mentioned therein.

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Further, the plaintiffs have proved execution of the PoA by the original

owner by examining PW1. It is contended therefore there is no dispute

that the steps mentioned in Section 33(1)(c) of the Registration Act were

complied with.

4.5 It is further submitted that Section 34 of the Registration Act

contemplates an enquiry which relates to various aspects mentioned in

sub-clause (3) including (i) enquiring into the fact as to whether such

document was executed by the persons by whom it purports to have

been executed; (ii) satisfying himself as to the identity of the persons

appearing before him; and (iii) in case of any person appearing as a

representative assign or agent satisfying himself as to the right of such

person so to appear. That on completion of enquiry as contemplated

under the Registration Act, the registering authority may direct

registration and issuance of a certificate in terms of Section 60(1) and

60(2) of the Act. Therefore by virtue of Section 60(2) of the Registration

Act, there is a statutory presumption which arises to the effect that the

document has been registered in the manner provided by the Act, which

means that it has been registered after due compliance of the enquiry

contemplated under Section 33(1) (c) and 36 of the Registration Act.

4.6 It is submitted that in the present case plaintiff No.2 had executed

the first sale deed dated 3.9.1968 which is a registered document. That

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on the foundation of the said sale deed, the second sale deed dated

29.09.1968 had been executed in favour of plaintiff No.1 and therefore

the owner of the property is plaintiff No.1. It is contended that on the

foundation of the aforesaid registered document, the title has to flow.

Otherwise, it would lead to a situation wherein a registered document will

have no effect. That in the present case there is no challenge to the sale

deeds. Therefore, the legal effect of the execution of the sale deeds has

been proved.

4.7 It is submitted that the defendants are asking for production of a

PoA which was used by the predecessor-in-interest of plaintiff No.1 to

execute the sale deed in his favour. This burden to provide the PoA on

the foundation of which the first sale deed was executed is an onerous

burden and not contemplated in law. That as such the defendants are

nothing but rank tress-passers. They have never set up their title in the

property. They have never asserted that they have obtained possessory

right from a person with title. Therefore, they have no right to challenge

the title of plaintiff No.1.

4.8 Relying upon the recent decision of this Court in the case of Amar

Nath (supra), it is submitted that as observed and held by this Court that

when a PoA holder executes the sale deed, he executes in terms of

Section 32(a) of the Registration Act and therefore he does not need to

17

produce the PoA. Only when the PoA holder executes a further PoA,

then only the second PoA holder will have to produce the PoA between

him and the first PoA and not otherwise.

4.9 Making the above submissions and relying upon the above

decision, 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 were

laying claim by virtue of the two sale deeds, one dated 3.9.1968

(executed by plaintiff No.2 in his favour on the basis of the alleged PoA

alleged to have been executed by the original land owner – Braja Mohan

Dey) and the second sale deed dated 29.09.1968 (executed by plaintiff

No.2 in favour of plaintiff No.1 as a PoA holder of the original owner).

Both, the learned trial Court as well as the first appellate Court held that

the plaintiffs have failed to prove their title as the PoA on the basis of

which plaintiff No.2 claimed the right/title is not forthcoming and/or not

produced before the Court. Therefore, both, the learned trial Court as

well as the first appellate Court held that the requirement of Section

33(1)(c) of the Registration Act has not been satisfied. However, by

drawing the statutory presumption under Section 60 of the Registration

Act, the High Court has believed the sale deeds dated 3.9.1968 and

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29.09.1968 and has held that the plaintiffs have proved their title. But, by

the impugned judgment and order and drawing the statutory

presumption, the High Court while exercising the powers under Section

100 CPC, has set aside the concurrent findings recorded by the courts

below.

6. When the plaintiffs claimed title on the basis of the aforesaid two

sale deeds dated 2.9.1968 and 29.09.1968, it was for the plaintiffs to

prove even the execution of the sale deeds. The defendants were not

required to challenge the sale deeds in the suit filed by the plaintiffs, who

prayed for a decree for a declaration of title in their favour. When plaintiff

No.2 claimed title on the basis of the PoA executed by the original owner

and thereafter executed the sale deed in favour of plaintiff No.1 as PoA

of the original owner, the conditions provided under Section 33(1)(c) of

the Registration Act are required to be strictly complied with. Sections 32

and 33 of the Registration Act, which are relevant for our purpose, read

as under:

“32. Persons to present documents for registration.—Except in

the cases mentioned in

33

[Sections 31, 88 and 89], every document

to be registered under this Act, whether such registration be

compulsory or optional, shall be presented at the proper registration

office,—

(a) by some person executing or claiming under the same, or in the

case of a copy of a decree or order, claiming under the decree or

order, or

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

(c) by the agent of such person, representative or assign, duly

authorized by power-of-attorney executed and authenticated in

manner hereinafter mentioned.

33. Power-of-attorney recognizable for purposes of Section 32.

—(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-attorney

resides in any part of

35

[India] in which this Act is for the time being

in force, a power-of-attorney executed before and authenticated by

the Registrar or Sub-Registrar within whose district or sub-district

the principal resides;

(b) if the principal at the time aforesaid resides in any part of India

in which this Act is not in force, a power-of-attorney executed

before and authenticated by any Magistrate;

(c) if the principal at the time aforesaid does not reside in

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[India],

a power-of attorney executed before and authenticated by a

Notary Public, or any Court, Judge, Magistrate, Indian Consul or

Vice-Consul, or representative of the Central Government:

Provided that the following persons shall not be required to attend at

any registration-office or Court for the purpose of executing any 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 without risk

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 the Court.

[Explanation.—In this sub-section, “India” means India, as defined 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-Registrar

or Magistrate, as the case may be, if satisfied that the power-of-

attorney has been voluntarily executed by the person purporting to

be the principal, may attest the same without requiring his personal

attendance at the office or Court aforesaid.

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(3) To obtain evidence as to the voluntary nature of the execution,

the Registrar or Sub-Registrar or Magistrate may either himself go to

the house of the person purporting to be the principal, or to the jail in

which he is confined, and examine him, or issue a commission for his

examination.

(4) Any power-of-attorney mentioned in this section may be proved

by the production of it without further proof when it purports on the

face of it to have been executed before and authenticated by the

person or Court hereinbefore mentioned in that behalf.”

7. According to the plaintiffs and it is not in dispute that the original

owner was residing in East Pakistan. According to the plaintiffs, the

original land owner executed the PoA in favour of plaintiff No.2 at

Kumilla, Bangladesh. The original PoA is not produced on record. As

per Section 32 of the Registration Act, every document to be registered

under the Registration Act shall be presented at the proper registration

office by some person executing or claiming under the same, or, by the

agent of such a person, representative or assign, duly authorised by PoA

executed and authenticated in the manner mentioned in Section 33(1)(c)

of the Registration Act. Section 33 of the Registration Act provides that

for the purposes of Section 32, only those power of attorneys shall be

recognised as are mentioned in Section 33(1). As per Section 33(1)(c) of

the Act, if the principal at the time of execution of the PoA does not

reside in India, a PoA executed before and authenticated by a Notary

Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or

21

representative of 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 at all. Section 32 of the Act is to be read along with

Section 33(1)(c) of the Registration Act. Only in a case where the

execution of the PoA is as per Section 32 read with Section 33(1)(c) of

the Act, there shall be statutory presumption under Section 60 and/or

under the provisions of the Registration Act. Therefore, the High Court

has committed a grave error in drawing the statutory presumption in

favour of the plaintiffs and more particularly with respect to alleged PoA

alleged to have been executed by the original owner in favour of plaintiff

No.2. As such, there were concurrent findings recorded by both the

courts below on non-compliance and/or non-fulfilling the conditions

mentioned in Section 33(1)(c) of the Registration Act. By drawing the

statutory presumption and without properly appreciating and/or

considering the fact that there is a non-compliance of Section 33(1)(c) of

the Registration Act there cannot be any statutory presumption, the High

Court has set aside the concurrent findings recorded by both the courts

below, in exercise of powers under Section 100 CPC.

8. Even the conduct on the part of the plaintiffs, more particularly on

the part of plaintiff No.2, executing the second sale deed in favour of

plaintiff No.1 – his own wife as a PoA of original land owner deserves

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serious consideration. It is required to be noted and even according to

the plaintiffs, on the basis of the PoA alleged to have been executed by

the original land owner – Braja Mohan Dey, plaintiff No.2 executed the

registered sale deed in his own favour dated 3.9.1968. If that be so, in

that case, there was no reason for him to execute the subsequent sale

deed in favour of plaintiff No.1 – his own wife as a PoA of the original

land owner. Once he became the owner on the basis of a registered

sale deed dated 3.9.1968, which was executed by him in his own name

as a PoA of the original owner, he could have executed the sale deed in

favour of plaintiff No.1 as the owner and not as a PoA of the original

owner.

9. Even another conduct on the part of the plaintiffs submitting the

application to amend the plaint under Order 6 Rule 17 CPC submitted

before the first appellate Court also creates doubts about the genuinity of

the PoA. It was never the case on behalf of the plaintiffs before the trial

Court and in the suit that the PoA was handed over by the plaintiffs to

original defendant No.1 and that despite his demands he never returned

the same. Having found and realised that the non-production of the PoA

had gone against them, subsequently, before the first appellate Court,

the plaintiffs sought to make out a case that the PoA was handed over by

plaintiff No.2 to original defendant No.1 and that despite his demands,

23

never returned the same. The amendment sought under Order 6 Rule

17 CPC was rightly refused by the first appellate Court. The plaintiffs

tried to make out altogether a new case which was not even the case of

the plaintiffs earlier. This conduct on the part of the plaintiffs also

deserves serious consideration and it creates serious doubts on the

genuinity of the PoA. In that view of the matter, the High Court has

committed a serious error in drawing a statutory presumption and the

authenticity of the sale deeds. There may be a statutory presumption as

per Section 60 of the Registration Act where all other requirements of

execution of the sale deed, required to be complied with under the

Registration Act are complied with and the genuineness of the PoA on

the basis of which the sale deed was executed is not doubted.

10. In view of the above and for the reasons stated above and as the

PoA is not produced on record; the executant of the PoA in favour of

plaintiff No.2 has not stepped into the witness box; there is a non-

compliance of Section 33(1)(c) of the Registration Act; and the plaintiff

no.2 is claiming title on the basis of the PoA alleged to have been

executed by the original owner which is not forthcoming and that plaintiff

no.1 is claiming the title on the basis of the sale deed dated 29.09.1968

executed by plaintiff No.2 as a PoA holder of the original owner which is

not forthcoming, I am of the opinion that the learned trial Court was

24

justified and right in dismissing the suit and refusing to pass a decree for

a declaration of title in favour of the plaintiffs. The same was rightly

confirmed by the first appellate Court. The High Court has committed a

serious error in decreeing the suit. The impugned judgment and order of

the High Court is unsustainable both, on law as well as on facts.

11. In view of the above and for the reasons stated above, the present

Appeal Succeeds and is Allowed. The impugned judgment and order

passed by the High Court decreeing the suit is hereby quashed and set

aside and the judgment and decree passed by the trial Court, confirmed

by the first appellate Court, is hereby restored. However, in the facts and

circumstances of the case, there shall be no order as to costs.

…………………………………J.

[M.R. SHAH]

NEW DELHI;

JANUARY 13, 2023.

25

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2965/2022

MANIK MAJUMDER & ORS. APPELLANT(S)

VERSUS

DIPAK KUMAR SAHA (D)

THR. LRS. & ORS. RESPONDENT(S)

J U D G M E N T

NAGARATHNA J.

I have had the advantage of reading the judgment

proposed by His Lordship M.R. Shah, J. However, I am unable to

agree with the reasoning as well as the result arrived at by His

Lordship. Hence, my separate judgment.

The defendants in Title Suit No. 201 of 1985 have assailed

the judgment and decree dated 05

th

April, 2018, passed by the

High Court of Tripura in Regular Second Appeal No. 01 of 2005.

By the impugned judgment, the judgment and decree dated 26

th

August, 2004 passed in Title Appeal No. 02 of 1996 by the First

26

Appellate Court, i.e., the Court of the District Judge, West

Tripura, Agartala, a�rming the judgment and decree dated 11

th

September, 1995 in Trial Suit No. 201 of 1985 has been set-

aside. Consequently, the suit has been decreed by the High

Court. Hence, the appeal by the defendants in the suit.

2. For the sake of convenience, the parties herein sha ll be

referred to in terms of their rank and status before the Trial

Court.

3. The case of the plainti�s in a nutshell is stated as under:-

(i) The suit property was owned and possessed by Braja Mohan

Dey and plainti� no. 2, namely, Dhirendra Chandra Saha was a

tenant running a shop in a hut located within the suit property.

Braja Mohan Dey took a loan of Rs. 10,000/- from plainti� no. 2

and since he was unable to repay the loan, he sold the land in

favour of plainti� no.1 in lieu of the loan amount.

(ii) However, soon after the sale, Braja Mohan Dey went to East

Pakistan (now Bangladesh) and could not complete registration

of the sale deed in favour of plainti� no. 2. Therefore, he

executed a Power of Attorney dated 01

st

August, 1968, in favour

of plainti� no. 2 before the 1

st

Class Magistrate, Komilla, Komilla

27

District, East Pakistan thereby appointing plainti� no. 2 as his

attorney i.e. on behalf of the seller, Braja Mohan Dey, to execute

a sale deed and transfer the property to the buyer as his

Attorney.

(iii) On the strength of the Power of Attorney dated 01

st

August,

1968, plainti� no. 2 executed and registered a sale deed dated

03

rd

September 1968 in his own favour as the attorney on behalf

of the seller, Braja Mohan Dey. Plainti� no. 2 thereby became

the owner of the suit property.

(iv) In his capacity as the absolute owner of the suit property,

plainti� no. 2 then executed a sale deed dated 29

th

October,

1968, in favour of his wife-plainti� no. 1, namely, Gita Rani

Saha. The said sale deed was registered on 09

th

November, 1968.

That the suit land stood in the name of plainti� no. 1 who duly

paid municipality tax, land revenue etc.

(v) That on one portion of the suit property described as

schedule ‘A’ property in the plaint, plainti� no. 2 was running a

grocery business under the name M/s. Dipak Bhandar. That the

land falling to the eastern side of schedule ‘A’ propert y,

described as schedule ‘B’ property in the plaint, was sold by

plainti� no. 2 to Makhan Chand Deb, who subsequently sold the

said land to Gauranga Chandra Dey. Defendant no 1 was

28

Gauranga Chandra Dey’s tenant in respect of schedule ‘ B’

property.

(vi) That plainti� no. 2 constructed a godown in the portion

behind his shop and the same has been described as schedule

‘C’ property in the plaint. The same was also in the possession of

plainti� no. 2. That defendant no. 1 tried to take forceful

possession of the suit property by breaking down the said

godown. In this regard Miscellaneous Case No. 02 of 1981 was

registered in the Court of the Sub-Divisional Magistrate, Sadar

and a prohibitory order was issued under Section 144 of the

Code of Criminal Procedure, 1898. During the pendency of the

prohibitory order, the defendants entered into the suit property,

took forceful possession of the same and broke down the

godown.

(vii) Thereafter, the Executive Magistrate took cognizance of

Miscellaneous Case No. 02 of 1981 and by an order dated 13

th

July, 1984 directed the defendants to vacate the suit premises,

failing which, possession thereof would be forcefully recovered

with the aid of police authorities. However, the order dated 13

th

July, 1984 was set aside by the Additional District and Sessions

Judge by an order dated 30

th

January, 1985 on the ground that

there was a delay of two months in conversion of the

29

proceedings initially registered under Section 144 of the Code of

Criminal Procedure to proceedings under Section 145 of the

Code. The order of the Additional District and Sessions Judge

dated 30

th

January, 1985 was sustained by the Gauhati High

Court, while granting liberty to plainti� no. 2 to initiate fresh

proceedings in this regard. That accordingly fresh proceedings

were initiated.

(viii) That notwithstanding the fact that notice of the fresh

proceedings was served on the defendants, they started putting

up a pucca construction on the suit property. Therefore, the

plainti�s were constrained to �le a suit for declaration of title

and recovery of khas possession of the suit land.

4. In response to the plaint, the defendants �led a written

statement the contents of which are encapsulated as under:-

(i) The fact that Braja Mohan Dey was the original owner and

possessor of the suit property, was denied. It was averred that

the contents of the plaint regarding the loan obtained by Braja

Mohan Dey, in lieu of which the suit property was sold to

plainti� no. 2, were totally false. That no power of attorney was

executed by Braja Mohan Dey in favour of plainti� no. 2 in

respect of the suit property.

30

(ii) That plainti� no. 2 was a tenant under defendant no. 1 in a

room located in the northern portion of schedule ‘A’ property.

(iii) That there arose no question of the defendants forcibly

taking possession of schedule ‘C’ property as they had been in

legal possession of the suit property for more than thirty years,

i.e., since the year 1981. That the defendants had been running

a business in the suit property under the name “Chandra Hotel.”

That neither of the plainti�s was ever in possession of the suit

land. That the documents based on which the plainti�s claimed

title over the suit land, i.e., power of attorney and sale deeds

were false and fabricated.

With the aforesaid averments, it was prayed before th e

Trial Court that the suit for declaration of title and recovery of

khas possession of the suit land, �led by the plainti�s, be

dismissed.

5. The Court of the Assistant District Judge, West Tripur a,

Agartala by its judgment and decree dated 11

th

September, 1995

dismissed T.S. No. 201 of 1985.

The salient �ndings of the Trial Court are as under:

(i)That the sale deed dated 03

rd

September, 1968 did not

contain an endorsement by the Sub-Registrar to the e�ect that

31

the sale deed was executed by plainti� no. 2 in his capacity as

the attorney of Braja Mohan Dey. The endorsement made by the

Sub-Registrar on the sale deed dated 03

rd

September was a

simple endorsement merely stating that the sale deed had been

executed by plainti� no. 2.

(ii)That it was not stated in the sale deed dated 03

rd

September, 1968 itself that plainti� no. 2 was making the sale

on the strength of the power of attorney executed in his favour

by Braja Mohan Dey.

(iii)That the plainti�s did not produce before the Trial Court,

the power of attorney which formed the basis for the sale deed

dated 03

rd

September, 1968. That although in another suit,

being T.S. 79/1973, plainti� no. 2 had deposed that the

document conferring power of attorney on plainti� no. 1, was

handed over by him to defendant no. 1, no such submission was

made in the present case.

(iv)That the sale deed dated 03

rd

, September, 1968 could not

be held to be properly executed for want of power of attorney

authorising such execution. Therefore, plainti� no. 2 could not

be said to have any right, title or interest over the suit property.

32

Consequently, it could not be held that the transfer made by

plainti� no. 2 in favour of plainti� no. 1 was valid.

(v)That no evidence was led by the defendants to establish

their title over the suit property by adverse possession which is a

signi�cant �nding.

6. Being aggrieved, the plainti�s preferred T.A. No. No. 02 of

1996 before the �rst appellate court. By judgment dated 26

th

August, 1995, the �rst appeal was dismissed and the judgment

of the Trial Court was con�rmed.

The relevant �ndings of the �rst appellate court are

encapsulated as under:

(i)That the plainti�s failed to prove that the power of attorney

was handed over to defendant no. 1. That since the p ower of

attorney stated to be executed by Braja Mohan Dey in favour of

plainti� no. 2 was neither produced before the court, nor was it

proved that the same was handed over to defendant n o. 1, a

question had arisen as to existence and genuinity of the power of

attorney.

(ii)That since the said power of attorney formed the basis for

the sale deed dated 03

rd

September, 1968, the sale deed could

not be considered to be legally executed.

33

7. Being aggrieved, the plainti�s preferred regular second

appeal No. 01 of 2005 before the High Court of Tripur a at

Agartala. By the impugned judgment dated 05

th

April, 2018, the

second appeal was allowed and the judgments of the Trial Court

and �rst appellate court were set aside.

The High Court considered and decided the following

substantial questions of law:

“1) Whether the endorsement made on the sale deed No. 1-

10394 dated 03.09.1968 in respect of the power of attorney

is a substantive evidence in respect of the power of attorney

authorising the plainti� no. 2 to sell the said land as

demised in the sale deed dated 03.09.1968?

2) Whether the defendants had fundamental onus to

discharge in respect that the power of attorney was not in

existence or forged and as such, the sale deed dated

03.09.1968 cannot be treated as the instrument of v alid

transfer?”

8. The following �ndings were recorded by the High Court in

the impugned judgment:

(i)That facts as to the authority of plainti� no. 2 to execute

the sale deed dated 03

rd

September, 1968 were recited therein

and having been satis�ed about the power of plainti� no. 2 to

execute the sale deed, the same was allowed by the Sub-

34

Registrar for being registered.

(ii)When a registering authority has made an endorsement

accepting that by virtue of a power of attorney, the attorney was

allowed to execute the sale deed, a statutory presumption ought

to be drawn as to the fact of validity of the power of attorney and

consequently of the sale deed.

(iii)That there is a presumption of correctness under Section

58 of the Registration Act, 1908, to transactions endorsed by a

Sub-Registrar. That such statutory presumption can be rebutted

only by strong evidence to the contrary.

(iv)That the Trial Court and �rst appellate court had wrongly

shifted the onus on the plainti�s, while the burden ought to

have been on the defendants to prove their case which was

contrary to the statutory presumption of validity of the sale deed

dated 03

rd

September, 1968. That the defendants failed to rebut

the presumption of validity of the sale deed even though the

onus was squarely on them.

Aggrieved by the judgment of the High Court allowing the

second appeal preferred by the plainti�s, the appellants-

defendants have approached this Court.

35

9. We have heard Sri Rana Mukherjee, learned senior

advocate appearing on behalf of the appellants and Sri.

Hrishikesh Baruah, learned advocate appearing on behalf of the

respondents, and perused the material on record.

10. Learned Senior Counsel for the appellants-defendants at

the outset contended that the High Court was not right in

allowing the second appeal preferred by the plainti�s by drawing

a presumption as to validity of the sale deed dated 03

rd

September, 1968. That the High Court committed a serious error

in law while setting aside the concurrent �ndings of the Trial

Court and �rst appellate court to hold that the sale deed dated

03

rd

September, 1968 was valid even though the power of

attorney forming the basis of such sale deed was neithe r

produced nor proved. That there may be a statutory

presumption under Section 60 of the Registration Act, 1908 only

where all other requirements of execution of sale deed are

complied with and when there is no doubt as to the genuinity of

the power of attorney. That a presumption ought not to have

been drawn in the present case as the plainti�s have failed to

produce the power of attorney or even a copy thereof to prove the

existence of the same.

36

11. It was further contended that even if it was to be assumed

that a power of attorney was executed by Braja Mohan Dey in

favour of plainti� no. 2, the same would still not be valid in the

eye of law owing to reasons of non- satisfaction of the statutory

requirements of Section 33 (1) (c) of the Registration Act, 1908.

That it was an undisputed fact that as on the date on which the

power of attorney is stated to be executed, Braja Mohan Dey was

residing in East Pakistan. That a power of attorney executed in a

foreign country, in order to be valid would have to be executed in

accordance with Section 33 (1) (c) of the Registration Act, 1908.

However, in the instant case, there is no evidence to

demonstrate that the power of attorney was executed in

accordance with the said statutory provision. That since the

execution of the power of attorney was not in accordance with

Section 33(1)(c), no statutory presumption can be drawn under

Section 60 of the Registration Act, 1908, as to the validity of the

sale deed dated 03

rd

September, 1968.

12. It was next submitted that the conduct of plainti� no. 2

required consideration inasmuch as he executed the second sale

deed in favour of his wife, as the power of attorney of the original

owner, even though he could have executed the same in his

37

capacity as owner of the suit property by virtue of the sale made

in his favour on 03

rd

September, 1968.

13. Sri Rana Mukherjee, Learned Senior Counsel appea ring on

behalf of the defendants- appellants contended that a party who

avers title in a property must prove the same and such party is

not relieved of the onus probandi. That assuming for the sake of

argument that the suit was not defended by the defendants, the

plainti�s would still have to prove their title in order to be

entitled to a decree.

With the aforesaid averments, it was prayed that the

impugned judgment of the High Court be set-aside and the

judgment of the Trial Court which was a�rmed by the �rst

appellate court, be restored.

14. Per contra, learned counsel for the respondents-plainti�s

supported the impugned judgment of the High Court and

contended that the High Court rightly drew a statutory

presumption as to the validity of the sale deed dated 03

rd

September, 1968. That it is trite law that registration of a

document is a solemn act and the recitals of a register ed

document are presumed to be valid unless such a presum ption

38

is rebutted by strong evidence to the contrary. That since the

Sub-Registrar had accepted the sale deed dated 03

rd

September,

1968 for registration, it is to be presumed that the Sub-Registrar

had done so only on satisfying himself as to the fact that the

person who was executing the document was the proper person

and competent to do so.

15. It was submitted that the endorsement made on th e sale

deed dated 03

rd

September, 1968 could be considered as prima-

facie evidence as to the title to the suit property. That

accordingly, there would arise a presumption as to validity of the

sale deed. While such presumption is a rebuttable presumption,

the defendants in the present case had failed to discharge the

burden of rebutting the same.

16. Section 60(2) of the Registration Act, 1908 was pre ssed

into service, to contend that registration of a document was

proof enough of the fact that the said document had been

registered in the manner provided under the Registration Act,

1908, and that the facts mentioned in the endorsement have

occurred as mentioned therein. In that regard, it was contended

that since the sale deed dated 03

rd

September, 1968 was a

39

registered document, a statutory presumption may be drawn as

to the fact that the registration was completed after due

compliance of the provisions of the Act.

17. That the Trial Court and the �rst appellate court cast an

onerous burden on the plainti�s to produce the power of

attorney which formed the basis of the sale deed date d 03

rd

September, 1968 to prove the sale deed which is a de ed of

conveyance of title. That such a burden was not contemplated

under law and on that ground, the present Civil Appeal may be

dismissed. It was urged that production of power of attorney was

not required in order to prove a registered sale deed.

In the above backdrop, it was contended that the High

Court was right in allowing the second appeal and hence, there

is no merit in the present appeal.

18. 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 the instant

case while executing the power of attorney dated 01

st

August,

40

1968?

(ii)Whether non-production of the document of power of

attorney before the Trial Court and the �rst appellate court

would be fatal to the case of the plainti�s?

(iii)Whether the plainti�s have proved the sale deeds dated

03

rd

September, 1968 and 29

th

October, 1968?

(iv)What order?

The relevant Sections of Registration Act, 1908, adverted to

by learned counsel for the parties read as under:

“32. Persons to present documents for registration .—

Except in the cases mentioned in 5 [sections 31, 88 and

89], every document to be registered under this Act,

whether such registration be compulsory or optional, shall

be presented at the proper registration-o�ce,—

(a) by some person executing or claiming

under the same, or, in the case of a

copy of a decree or order, claiming

under the decree or order, or

(b) by the representative or assign of such

a person, or

(c) by the agent of such a person,

representative or assign, duly

authorised by power-of-attorney

executed and authenticated in manner

hereinafter mentioned.

41

33. Power-of-attorney recognisable for purposes of

section 32.—

(1) For the purposes of section 32, the

following powers-of-attorney shall alone be

recognized, namely:—

(a) xxx xxx xxx;

(b) xxx xxx xxx;

(c) if the principal at the time

aforesaid does not reside in

1

[India], a

power-of-attorney executed before and

authenticated by a Notary Public, or

any Court, Judge, Magistrate,

2

[Indian]

Consul or Vice-Consul, or

representative

3

[***] of the Central

Government:

34. Enquiry before registration by registering o�cer.—

(l) Subject to the provisions contained in this

Part and in sections 41, 43, 45, 69, 75, 77, 88

and 89, no document shall be registered

under this Act, unless the persons executing

such document, or their representatives,

assigns or agents authorized as aforesaid,

appear before the registering o�cer within the

time allowed for presentation under sections

23, 24, 25 and 26:

Provided that, if owing to urgent necessity or

unavoidable accident all such persons do not

so appear, the Registrar, in cases where the

delay in appearing does not exceed four

months, may direct that on payment of a �ne

not exceeding ten times the amount of the

proper registration fee, in addition to the �ne,

if any, payable under section 25, the

document may be registered.

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.

42

(2) Appearances under sub-section (1) may be

simultaneous or at di�erent times.

(3) The registering o�cer shall thereupon—

(a) enquire whether or not such

document was executed by the persons

by whom it purports to have been

executed;

(b) satisfy himself as to the identity of

the persons appearing before him and

alleging that they have executed the

document; and

(c) in the case of any person appearing

as a representative, assign or agent,

satisfy himself of the right of such

person so to appear.

(4) Any application for a direction under the

proviso to sub-section (1) may be lodged with

a Sub-Registrar, who shall forthwith forward it

to the Registrar to whom he is subordinate.

(5) Nothing in this section applies to copies of

decrees or orders. 

58. Particulars to be endorsed on documents admitted

to registration.—

(1) On every document admitted to

registration, other than a copy of a decree or

order, or a copy sent to a registering o�cer

under section 89, there shall be endorsed

from time to time the following particulars,

namely:—

(a)the signature and addition of

every person admitting the

43

execution of the document, and, if

such execution has been admitted

by the representative, assign or

agent of any person, the signature

and addition of such representative,

assign or agent;

(b)the signature and addition of

every person examined in reference

to such document under any of the

provisions of this Act; and

(c) any payment of money or delivery of

goods made in the presence of the

registering o�cer in reference to the

execution of the document, and any

admission of receipt of consideration, in

whole or in part, made in his presence

in reference to such execution.

(2) If any person admitting the execution of a

document refuses to endorse the same, the

registering o�cer shall nevertheless register it,

but shall at the same time endorse a note of

such refusal.

“60. Certi�cate of registration.—

(1)After such of the provisions of

Sections 34, 35, 58 and 59 as apply to any

document presented for registration have

been complied with, the registering o�cer

shall endorse thereon a certi�cate

containing the word “registered”, together

with the number and page of the book in

which the document has been copied.

(2) Such certi�cate shall be signed, sealed

and dated by the registering o�cer, and shall

then be admissible for the purpose of proving

that the document has been duly registered in

manner provided by this Act, and that the

facts mentioned in the endorsement, referred

to in Section 59 have occurred as therein

mentioned.”

44

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

as under:

“67. Proof of signature and handwriting of

person alleged to have signed or written

document produced. —If a document is

alleged to be signed or to have been written

wholly or in part by any person, the signature

or the handwriting of so much of the

document as is alleged to be in that person’s

handwriting must be proved to be in his

handwriting.

85. Presumption as to powers-of-attorney .

–– The Court shall presume that every

document purporting to be a power-of-

attorney, and to have been executed before,

and authenticated by, a Notary Public, or any

Court, Judge, Magistrate, [Indian] Consul or

Vice-Consul, or representative of the [Central

Government], was so executed and

authenticated.”

Section 17 of the Registration Act speaks about documents

of which registration is compulsory, while Section 18 deals with

documents of which registration is optional. Clause (f) of Section

18 states that all other documents not required by Section 17 to

be registered, may be registered at the option of the parties. In

other words, the documents which are compulsorily registrable

are listed under Section 17 and such list is exhaustive. The

documents, registration of which is optional, are speci�ed in

clauses (a) to (e) of Section 18 but this list is not exhaustive.

45

Under clause (f) of Section 18 “all other documents” which do

not require registration under Section 17 are also optionally

registrable such as the power of attorney, document relating to

adoption etc.. A power of attorney is not a compulsorily

registrable document when it is duly notarized. It carries the

presumption of being valid in view of Section 85 of Evidence Act.

Since, a power of attorney does not come within the am bit of

Section 17 or clause (a) to (e) of Section 18, registration of a

power of attorney is optional. An attorney holder may execute a

deed of conveyance in exercise of the power granted under the

power of attorney and convey title on behalf of the grantor or

principal, provided he has been speci�cally given power to sell

the property of the principal. The nature and scope of power of

attorney has been explained by this Court speaking through

R.V. Raveendran, J. in Suraj Lamp and Industries vs. State

of Haryana (2012) 1 SCC 656 . The relevant paragraphs of the

judgment reads as under:

“20. A power of attorney is not an instrument

of transfer in regard to any right, title or

interest in an immovable property. The power

of attorney is creation of an agency whereby

the grantor authorises the grantee to do the

acts speci�ed therein, on behalf of grantor,

which when executed will be binding on the

grantor as if done by him (see Section 1-A and

Section 2 of the Powers of Attorney Act, 1882).

It is revocable or terminable at any time

unless it is made irrevocable in a manner

46

known to law. Even an irrevocable attorney

does not have the e�ect of transferring title to

the grantee.

21.  In State of Rajasthan  v. Basant

Nahata [(2005) 12 SCC 77] this Court

held: (SCC pp. 90 & 101, paras 13 & 52)

‘13. A grant of power of attorney is

essentially governed by Chapter X

of the Contract Act. By reason of a

deed of power of attorney, an agent

is formally appointed to act for the

principal in one transaction or a

series of transactions or to manage

the a�airs of the principal

generally conferring necessary

authority upon another person. A

deed of power of attorney is

executed by the principal in favour

of the agent. The agent derives a

right to use his name and all acts,

deeds and things done by him and

subject to the limitations

contained in the said deed, the

same shall be read as if done by

the donor. A power of attorney is,

as is well known, a document of

convenience.

***

52. Execution of a power of

attorney in terms of the provisions

of the Contract Act as also the

Powers of Attorney Act is valid. A

power of attorney, we have noticed

hereinbefore, is executed by the

donor so as to enable the donee to

act on his behalf. Except in cases

where power of attorney is coupled

with interest, it is revocable. The

donee in exercise of his power

under such power of attorney only

acts in place of the donor subject

of course to the powers granted to

him by reason thereof. He cannot

use the power of attorney for his

47

own bene�t. He acts in a �duciary

capacity. Any act of in�delity or

breach of trust is a matter between

the donor and the donee.’

An attorney-holder may however

execute a deed of conveyance in exercise of the

power granted under the power of attorney

and convey title on behalf of the grantor.”

The relevant provisions of the Registration Act, 1908, could

be discussed.

(i) Section 32 speaks about persons to present document for

registration. A power of attorney has a special authority to

present a document on behalf of the principal at the registration

o�ce vide Chottey Lal vs. The Collector of Moradabad A.I.R.

1922 PC 279.

(ii) Under Section 33 (1) (c), if a power of attorney has been

executed before and authenticated by Magistrate, 1

st

Class of

Komilla (Bangladesh) authorising the attorney to execute a sale

deed for a house in India, it is su�cient to prove its execution

vide Atal Chakravarty vs. Sudhi Gopal Pandey (1969) 73

CWN 947. On the other hand, if a power of attorney is not

executed and authenticated in compliance with Section 33(1)(c),

the same is invalid. Thus, if a principal does not reside in India

and power of attorney executed before and authenticated by a

48

Notary Public or any court Judge, Magistrate, Indian Consul or

Vice-Consul, or representative of the Central Government, the

same is valid.

(iii) Section 34 speaks about the enquiry to be made befor e

registration of a document by registering o�cer. Section 35 casts

a duty on the registering authority to enquire about the identity

of the executant and the factum of execution and registration of

a document is to be treated as presumption of execution by the

person indicated as the executant of the document. Su ch a

presumption is, however, rebuttable. Sections 34 and 35 state

what a registering o�cer has to see before registering a

document. Once satis�ed as to such particulars as are stated

under Sections 34 and 35, he cannot refuse to registe r a

document except mentioned under grounds in Section 35(3).

(iv) Section 58 speaks about particulars to be endorsed on

documents admitted for registration, namely:

a) the signature and addition of every person

admitting the execution of the document,

and, if such execution has been admitted by

the representative, assign or agent of any

person, the signature and addition of such

representative, assign or agent;

49

b) the signature and addition of every person

examined in reference to such document

under any of the provisions of this Act; and

c) any payment of money or delivery of goods

made in the presence of the registering

o�cer in reference to the execution of the

document, and any admission of receipt of

consideration, in whole or in part, made in

his presence in reference to such execution.

Thus, the registering o�cer shall endorse the signature of

every person admitting the execution of document. Such

document is prima facie evidence against the executant. The

presumption of correctness attached to endorsement m ade by

the Sub-Registrar is in view of the provisions of Sections 58, 59

and 60 of the Registration Act. This presumption can be

rebutted only by strong evidence to the contrary.

On compliance of Sections 34, 35, 58 and 59 as they apply

to a given document, the registering o�cer shall endorse a

certi�cate containing word “Registered” on the document itself

and indicate the number and page of the book in which t he

document has been copied. This gives the document, th e

50

character of a registered document. Thus, compliance o f the

provisions of Sections 34, 35, 52, 58 and 59 constitute s

registration. The certi�cate of registering o�cer is admissible to

prove the admission of execution.

However, a registered deed has to be proved in accordance

with Section 67 of the Evidence Act, 1872. Section 67 states that

if a document is alleged to be signed or to have been written

wholly or in part by any person, the signature or the

handwriting of so much of the document as is alleged to be in

that person’s handwriting must be proved to be in his

handwriting. Section 67 states that proof of signature and the

genuineness of document proved by the proof of handwriting is

proof of execution. Execution of a document means sign ing a

document by consenting on it by a party. Section 67 does not

prescribe any particular mode of proof. Mere registration of a

document is not self-su�cient proof of its execution. It is only a

prima facie proof of its execution particularly when no other

evidence is available. Registration of a document is evidence of

its execution by its executor. Certi�cate by registering o�cer

under Section 60 of the Registration Act, 1908 is relevant for

proving its execution. Proof by evidence a�orded by the contents

of the documents is of considerable value.

51

In the instant case, what is sought to be proved is title by

the sale deed and not the power of attorney as it is the sale deed

which conveys title and the sale deed has been executed in

accordance with the provisions of Registration Act, 1908, and

proved in accordance with Section 67 of Evidence Act. It cannot

be held that the sale made on behalf of the seller (original owner

of the suit land) to the buyer through the power of attorney is

vitiated as the power of attorney was not produced before the

Court. This is because even in the absence of the production of

the power of attorney, the contents of the sale deed and the

execution of the power of attorney as well as the sale deed have

been established by proving the sale deed in accordance with the

law.

19. A primary plank in the arguments advanced on behalf of

the appellants-defendants is that the requirements of Section

33(1) (c) of the Registration Act had not been complied with

while executing the power of attorney dated 01

st

August, 1968

and therefore, no validity could be attached to the said

document. Consequently, the sale deed dated 03

rd

September,

1968 which was executed on the strength of the said power of

attorney could also not be presumed to be valid. In order to

52

determine whether the statutory requirements of Section 33 (1)

(c) of the Registration Act, 1908 had been complied with while

executing the power of attorney, the recitals of the sale deed

dated 03

rd

September, 1968 may be referred to. On perusal of

Annexure CA-1 (Exhibit – 11 before trial court) which is a copy

of deed of sale dated 03

rd

September, 1968 executed by the

Power of Attorney holder (plainti� No.2) in favour of himself, the

following facts emerge:

(i)That Sri Braja Mohan Dey is the owner of the land in

question after getting rayati jote allotment order from the

government land authorities.

(ii)That due to the need for construction of huts and fo r

urgent family expenditure, the seller Braja Mohan Dey ha d

approached the buyer, that is, Sri Dhirendra Chandra Saha,

(plainti� No.2) to lend some money, as the buyer was the tenant

of the said land (suit schedule property) and the buyer agreed to

lend the money to the seller.

(iii)In the year 1964, the seller received a loan amount o f

Rs.10,000/- (ten thousand) from the buyer and constructed huts

on the aforesaid land.

53

(iv) The seller had gone to Hatiya of East Pakistan but was

unable to return and could not repay the loan amount t o the

buyer therefore, he intended to sell his land and, hence, through

a messenger, informed the buyer about the same as he was in

possession of the suit schedule land, as a tenant. The said

tenant/buyer agreed to buy the land in lieu of the debt that the

seller had to pay.

(v)The seller acknowledged this condition that in discharging

the liability of loan of Rs.10,000/- towards the buyer and to

provide a registered Sale Deed in favour of the buyer, on 1

st

August, 1968 executed a Power of Attorney before the 1

st

Class

Magistrate, Komilla, Komilla District, East Pakistan appointing

Sri Dhirendra Chandra Saha – plainti� No.2 as his attorney i.e.

on behalf of the seller to execute a sale deed and transfer the

property to the buyer as his Attorney.

(vi)That the buyer can obtain mutation against the seller in

the Government records by creating a record of right in his name

including his legal heirs and the successors without any

objection.

54

20. In Annexure CA – 2 (Exhibit – 12), which is a copy of the

sale deed dated 29

th

October, 1968 the following recitals are

recorded:

(i)That the schedule land is in absolute ownership and

possession of the owner namely, Sri Dhirendra Chandra Saha

(plainti� No.2) by virtue of a registered sale deed dated 03

rd

September, 1968.

(ii)That since the original owner, Sri Braja Mohan Dey, could

not repay a sum of Rs. 10,000/- (ten thousand) to the seller (Sri

Dhirendra Chandra Saha) he executed a Power of Attorney dated

01

st

August, 1968 appearing before the 1st Class Magistrat e,

Komilla Sadar, District Komilla, East Pakistan appointing Sri

Dhirendra Chandra Saha (plainti� No.2) as his legal attorney

giving power to sell or transfer himself the property in question

the land in question.

(iii)That on the strength of the aforesaid power of attorney

dated 03

rd

September, 1968, plainti� No.2 sold the said property

to himself vide registered deed dated 03

rd

September, 1968 as a

result he became the absolute owner and in possession o f the

land along with the house standing thereon as a buyer.

55

(iv)As an absolute owner, he executed registered sale deed in

favour of his wife Geeta Rani Saha on account of an earlier loan

taken by him for Rs.20,000/- and in lieu of repayment thereof.

21. On a conjoint reading of the aforesaid two documents ,

namely sale deeds, it is established that the initial sale deed

dated 03

rd

September, 1968 by plainti� No.2 Sri Dhirendra

Chandra Saha is as a power of attorney holder of Braja Mohan

Dey, to himself as a buyer. The power of attorney is dated 01

st

August, 1968, the details of which are referred to in the said sale

deed inasmuch as the power of attorney was executed by the

original owner Sri Braja Mohan Dey before the 1

st

Class

Magistrate, Komilla, East Pakistan, which is evident on a

reading of both the documents. Thereafter, plainti� No.2

executed a sale deed dated 29

th

October, 1968 in favour of the

plainti� No.1 as the absolute owner of the suit schedule

property. Therefore, there is compliance of Section 33 (1) (c) of

the Registration Act, 1908 inasmuch as the power of attorney

has been executed before the 1

st

Class Magistrate, Komilla, East

Pakistan. Hence there is no substance in the contention of the

learned Senior Counsel appearing for the appellants-defendants

that the requirements of Section 33(1) (c) of the Registration Act,

56

1908, had not been complied with while executing the power of

attorney dated 01

st

August, 1968 and therefore, no validity could

be attached to the said document.

22. It is also required to be noted at this juncture that as per

Section 18 of the Registration Act, registration of deed of

attorney is optional. Further, Section 32 deals with th e

categories of persons who can present documents for

registration. The following three categories of persons a re

mentioned therein:

(a) by some person executing or claiming under

the same, or, in the case of a copy of a

decree or order, claiming under the decree or

order, or

(b) by the representative or assign of such a

person, or

(c) by the agent of such a person, representative

or assign, duly authorised by power-of-

attorney executed and authenticated in

manner mentioned therein.

57

Therefore, it is evident that plainti� no. 2, had the

authority as per Section 32 (c) to present a document for

registration in his capacity as the attorney of Braja Mohan Dey,

the original owner of the suit property.

23. Further, non- production of the power of attorney in the

suit is also not fatal to the case of the plainti�s. In this regard,

reliance may be placed on a recent judgment of this Court in

Amar Nath vs. Gian Chand and Anr ., 2022 SCC OnLine SC

102. The facts of the said case are that the Plainti� therein had

executed a power of attorney in favour of the second defendant

therein and on the strength of such power of attorne y, the

second defendant executed a sale deed in favour of th e �rst

defendant. However, the plainti� challenged the sale made in

favour of the �rst defendant, inter-alia, on the ground that the

second defendant could not have executed a sale deed in the

absence of the original power of attorney and the sub-registrar

was required to verify this aspect from the second defendant. It

was contended that the sale deed executed without producing

the power of attorney was without authority as the plainti� No.2

was not competent to transfer the possession in the absence of

the original power of attorney. The suit was dismissed by the

58

Trial Court and the First Appellate Court. The High Court in

Second Appeal reversed the decision of the Trial Court and First

Appellate Court and decreed the suit in favour of the plainti�. In

doing so, the High Court noted that it was unclear from the

endorsement on the sale deed as to by whom the plainti� No.2

was identi�ed to be the power of attorney. This Court in a Civil

Appeal challenging the decision of the High Court, set aside the

same and held that a power of attorney holder, while executing a

sale deed, need not produce the original document conferring

power of attorney. That a sale would not be liable to be disturbed

solely on the ground that the power of attorney forming the basis

of such sale was not produced before the Sub-Registrar at the

time of registration.

On examining the scheme of Sections 32-34 of the

Registration Act, the following observations were made:

“19. The argument of the plainti� that for a proper and

legal presentation of a document, the �rst defendant was

obliged to produce the original power of attorney, does not

appear to be sound.

20. In other words, when a person empowers another to

execute a document and the power of attorney, acting on

the power, executes the document, the power of attorney

holder can present the document for registration under

Section 32(a). Section 32(a) of the Registration Act deals

with the person executing a document and also the person

claiming under the same. It also provides for persons

claiming under a decree or an order being entitled to

59

present a document. Section 32(b) speaks about the

representative or assignee of ‘such a person’. The word such

a person in Section 32(b) is intended to refer to the persons

covered by Section 32(a). Finally, Section 32(c) provides for

the agent of ‘such a person’ which necessarily means the

persons who are encompassed by Section 32(a). Besides

agent of the person covered by Section 32(a), Section 32(c)

also takes in the agent of the representative or assignee.

Now the words representative or assignee are to be found in

Section 32(b). Thus, Section 32(c) deals with agents of the

persons covered by Section 32(a) and agents of the

representative or assignee falling under Section 32(b). It is

in respect of such an agent that there must be due

authorisation by a power of attorney, which in turn, is to be

executed and authenticated in the manner provided for in

Section 33. However, the person, who has actually signed

the document or executed the document for the purpose of

Section 32 (a) does not require a power of attorney to

present the document. It may be open to the principal, who

has entered obligations under the document, to present the

document. Section 32(c) must alone be read with Section 33

of the Act. Thus, when Section 32(c) of the Registration Act

declares that a document, whether it is compulsorily or

optionally registrable, is to be presented, inter alia, by the

agent of such a person, representative or assignee, duly

authorised by power of attorney, it must be executed and

authenticated in the manner and hereinafter mentioned

immediately in the next following section. Section 33 by its

very heading provides for power of attorney recognisable for

the purpose of Section 32. Section 32(a) cannot be read

with Section 33 of the Act. In other words, in a situation, if

a document is executed by a person, it will be open to such

a person to present the document for registration through

his agent. The agency can be limited to authorising the

agent for presenting the document for it is such a power of

attorney, which is referred to in Section 32(c). It is in regard

to a power of attorney holder, who is authorised to present

the document for registration to whom Section 33 would

apply. In the facts of this case, the second defendant was

armed with the power of attorney dated 28.01.1987 and if it

was not cancelled and he had executed the sale deed on

28.04.1987, he would be well within his rights to present

the document for registration under Section 32(a) of the

Act.

21. XXX XXX

22. XXX XXX

23. XXX XXX

60

24. XXX XXX

25. XXX XXX

26. For reasons, which we have indicated, Section 32(c)

read with Section 33 and Section 34(2)(c) are interrelated

and they would have no application in regard to the

document presented for registration by a power of attorney

holder who is also the executant of the document. In other

words, there is really no need for the production of the

original power of attorney, when the document is presented

for registration by the person standing in the shoes of the

second defendant in this case as he would be covered by

the provisions of Section 32(a) as he has executed the

document though on the strength of the power of attorney.

To make it even further clear, the inquiry contemplated

under the Registration Act, cannot extend to question as to

whether the person who executed the document in his

capacity of the power of attorney holder of the principal,

was indeed having a valid power of attorney or not to

execute the document or not.”

(Underlining by me)

In short, the law laid down in Amar Nath (supra) supports

the position that production of the original power of attorney is

not an indispensable requirement to establish the validity of

execution of a sale deed. It would therefore follow that

production of a power of attorney is not a necessary requirement

to prove a sale deed before a court of law executed through a

power of attorney.

24. Section 67 of the Evidence Act deals with proof of

documents such as a sale deed as in the instant case. The proof

of signature or the handwriting of the executant on a document

61

is su�cient to prove a document which is the sale deed dated

29

th

October, 1968, in the instant case. There is no dispute that

the said sale deed is not signed by plainti� No.2 or that it is not

his signature or that he is not the executor of the document. The

admission of the signature of the said document by plainti� No.2

is proof of the signature on the document which is su�cient for

proof of the document of sale deed of sale in favour of plainti�

No.1. Further, the same is a registered sale deed which is a

document conveying title. Hence, the plainti� No.1 has acquired

title from plainti� No.2 and from the original owner of the land

in question. Therefore, under the circumstances, plainti� No.1

has proved her right, title and interest in the land in question.

There is no contra evidence produced by the defendants so as to

defeat the validity of the sale deeds. The said documents speak

for themselves. Therefore, there is no substance in the

contentions of the appellants arising under the provisions of the

Registration Act, 1908. Thus, plainti� No.1 has acquired title to

the land in question. Further, when a sale deed is executed on

the strength of deed of power of attorney, the non-production of

the deed of power of attorney in the suit is not fatal to the case

of the plainti�.

62

25. The appellants-defendants herein contended that tha t

there may be a statutory presumption as per Section 60 of the

Registration Act, 1908, only where all other requirements of

execution of sale deed are complied with and there is no doubt

as to the genuineness of the power 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 was exec uted in

conformity with Section 33 (1) (c) of the Registration Act, 1908

because the power of attorney has been duly executed before the

1

st

Class Magistrate, Komilla, East Pakistan as noted from the

two sale deeds. There is no contra evidence produced b y

defendants in that regard. Since the requirements of execution

of a sale deed are duly complied with, and there is no reason to

doubt the recitals of the sale deed which has been proved in

accordance with law, it would follow that the statutory

presumption under Section 60 of the Registration Act could be

invoked in the instant case.

26. It is trite that registration of a document is a solemn act of

parties and the recitals of a registered document are presumed

to be valid unless such a presumption is rebutted by strong

evidence to the contrary, vide Ishwar Dass Jain vs. Sohan Lal,

63

(2000) 1 SCC 434 . This is because, as already stated, the

document speaks for itself.

In Chottey Lal vs. The Collector of Moradabad (supra)

the Privy Council considered the question as to the presumption

of validity of a power of attorney which formed the basis of a

registered mortgage deed which was later challenged. The Privy

Council noted that since the sub-registrar had accepted the

document for registration, it is prima-facie evidence that the

conditions have been satis�ed and after registration of the

document, the burden of proving any alleged in�rmity rests on

the person who challenges the registration. Similarly, in Jugraj

Singh and Anr. vs. Jaswant Singh and Ors. , 1970 (2) SCC

386, this Court reiterated the legal position as to the

presumption of regularity of o�cial acts, and held that it would

be presumed that a sub-registrar registering a document would

have proceeded with the registration only on satisfying himself

as to the fact that the person who was executing the document

was the proper person.

27. Reliance may also be placed on the decision of this Court

in Rattan Singh and Ors. vs. Nirmal Gill and Ors ., AIR 2021

SC 899. In the said case, the issue pertained to the validity of a

64

general power of attorney (hereinafter, “GPA”) and consequently

of the sale deed executed on the strength of the GP A. The

plainti� therein, being the executor of the GPA contended that

the GPA was obtained fraudulently and was therefore inv alid.

This Court, while holding that no case of fraud was made out,

upheld the validity of the GPA and the sale deed executed on the

strength of the GPA. The relevant observations of this Court as

to the presumption of validity of documents and burden of proof

required to rebut such presumption, are extracted as under:

“The presumption in favour of a 30-year old document is a

rebuttable presumption. Nothing prevented the Plainti� to

rebut the presumption by leading appropriate evidence in

order to disprove the same. Since the Plainti� failed to do

so, the said document would be binding on the Plainti�. As

a matter of fact, the parties had acted upon the terms of the

said document without any demur since 1963 and it was,

therefore, not open to resile therefrom at this distance of

time. Hence, the trial Court was right in holding the 1963

GPA, to be a genuine document.”

28. In short, it has been authoritatively laid down by th is

Court that a registered document carries with it, by virtue of it

being registered, the presumption as to the authority of the

person executing it. In the present case, the Trial Court and the

First Appellate Court failed to treat the endorsement made by

the District Sub-Registrar on the body of the sale dee d, as

evidence in respect of the authority of Plainti� No. 2 to execute

65

the sale deed. This is to be considered in light of the fact that at

no point of time did the original owner namely, Braja Mohan Dey

dispute the execution of power of attorney in favour of Plainti�

No. 2.

29. Prima-facie, the endorsement made on the sale deed dated

03

rd

September, 1968, could be considered as determinative

evidence of the conveyance of title to the suit property by its

original owner, especially where the defendants have not set up

a case to establish any independent title over the suit property.

When such a presumption arises, the onus would be on a

person who challenges such presumption, to successfully rebut

it, vide Prem Singh and Ors. vs. Birbal and Ors. , (2006) 5

SCC 353. In that context, the question that would arise is,

whether, the defendants have rebutted the presumptio n of

validity of the sale deed dated 03

rd

September, 1968. In order to

answer this question, the following facts may be considered:

(i)Trial Court and First Appellate Court have concurrently

found that the defendants do not have any title over the suit

land and against such �nding the defendants have not preferred

an appeal. They have thus accepted this �nding which has

attained �nality.

66

(ii)The original owner namely, Braja Mohan Dey has not

initiated any proceeding to dispute the execution of power of

attorney in favour of Plainti� No. 2.

(iii)The order of the Sadar Munsi� dated 17

th

July, 1974, in

T.S. 69/1974 records that by way of a sale deed dated 03

rd

September, 1968, Plainti� No. 2 had purchased the suit property

and was paying municipal taxes as the owner of the pre mises

which �nding is binding on the parties herein as the same has

not been upset by any Court of law. Sarat Chandra Ma jumdar,

original defendant No. 1 in the present suit, was the plainti�

therein.

(iv)Notwithstanding the fact that the original defendant had

become aware of the sale deed dated 03

rd

September, 1968 and

of the power of attorney that formed the basis of such sale deed,

no steps were taken by the Defendant to challenge Plainti� No.

2’s title over the suit property. It was only in the wr itten

statement �led in the present suit that it was vaguely claimed

that Sarat Chandra Majumdar was the title holder of the suit

property and Plainti� No. 2 was a tenant therein. This, without

there being any legal basis or evidence.

67

In light of the said facts, it can be stated that the defendant

has not rebutted the presumption of validity of the sale deed

dated 03

rd

September, 1968.

30. In short, there is no reason to disbelieve the re citals

contained in the registered sale deed dated 03

rd

September, 1968

merely on the ground that the document conferring pow er of

attorney in favour of plainti� no. 2 was not produced before the

Trial Court.

In the instant case, the High Court was therefore right in

holding that when a document has been duly registered, there is

a presumption of correctness and it can be rebutted o nly by

strong evidence to the contrary. But the defendants have not led

any evidence in order to rebut the presumption as might be

drawn on the basis of the said endorsement on the body of the

sale deed No.1010394, dated 03.09.1968 accepting origin al

plainti� no.2 as the attorney of the original owner, Braja Mohan

Dey. The same is a vital piece of evidence which has b een

ignored by the Trial Court as well as the �rst Appellate Court.

The High Court is further right in holding that original plainti�

no.2 was duly nominated and constituted as the attorne y of

Braja Mohan Dey (original owner of the suit land) and on the

68

strength of the said power of attorney, plainti� No.2 transferred

land in favour of himself. As the absolute owner, plainti� No.2

sold the said land to plainti� No.1. Thus, plainti� no.1 had every

right to recover the said suit land, description of which has been

provided in the Schedule (C) of the plaint by removing and

demolishing all obstructions from the defendants. The High

Court was therefore right in decreeing the suit.

Consequently, the present appeal is dismissed. The

impugned judgment of the High Court of Tripura in Regular

Second Appeal No. 01 of 2005, by which, the judgment and

decree dated 26

th

August, 2004 passed in Title Appeal No. 02 of

1996 by the First Appellate Court in Title Appeal No. 02 of 1996

a�rming the dismissal of Title Suit No. 201 of 1985 by the Asst.

District Judge No.1, Tripura has been set-aside, is a�rmed.

31. Parties are directed to bear their respective costs.

.................................J.

[B.V. NAGARATHNA]

NEW DELHI

13 JANUARY, 2023.

69