Ahmad Bari vs Ranjit Singh

I. S. Mathur, J.—Abdul Bari, father of the appellants was bhumidhar of plot No. 13 area 16.67 acres in village Kapthaura, ParganaBhoor, DistrictLakhimpur Kheri. He appointed Aizaz Ali, father of the respondent No. 2 in second Civil Appeal No. 376 of 1991, as his Attorney under a General Power of Attorney dated 16.8.1969 (Paper No. 45C in the record of suit No. 62 of 1986). In pursuance of this general power of Attorney, Aizaz Ali executed a registered agreement to sell in respect of this plot in favour of the respondent, Ranjit Singh, on 28.5.1984 (Ext. 1 in the record of suit No. 62 of 1986). This agreement, inter alia, provided that the sale deed will be executed in respect of the aforesaid plot in favour of Ranjit Singh against a consideration of Rs. 30.000/ out of which a sum of Rs. 29,000/has been paid and the balance Rs. 1,000/shall be paid at the time of registration of the sale deed. It was further provided that the sale deed will be executed within six months of the receipt of incometax clearance. Abdul Bari died on 16.3.1983 and the ownership of the plot in question devolved on his sons, Ahmad Bari and Fazalul Bari. Ranjit Singh asked these appellants to execute the required sale deed but they did not do so.

Ranjit Singh thereupon filed a suit, being suit No. 62 of 1986 in the Court of Civil Judge, Lakhimpur Kheri, praying that the defendantappellants, Abdul Bari and Fazalul Bari, be directed to execute the sale deed in his favour and, in the alternative, refund the sum of Rs. 29,000/

The suit was contested by the appellants. The defence taken by the appellants was that their father, Abdul Bari, did not execute the alleged power of Attorney in favour of Aizaz Ali and, even if he did, that power came to an end with his death on 16.3.1983. Accordingly, Aizaz Ali had no power to execute the alleged agreement to sell on 28.5 1984. Further defence of appellant No. 2 was that there had been a partition between him and Ahmad Bari and the plot in question has come in the share of defendant No. 1, namely, Abdul Bari.

Another suit, being regular suit No. 158 of 1987, was filed by the appellant, Ahmad Bari, against the respondent, Ranjit Singh, praying for permanent injunction against Ranjit Singh restraining him from interfering with his possession over the plot in question. It was alleged by Ahmad Bari that he was in possession over the land in suit and the defendant Ranjit Singh was trying to cut off the crop forcibly. Ranjit Singh denied this allegation and claimed that he was in possession.

Learned Munsif framed the following issues :

Learned Munsif held that Abdul Bari had appointed Aizaz Ali as his general power of Attorney and had empowered him to execute the agreement deed and sale deed against a consideration of Rs. 30.000/ and that Aizaz Ali executed an agreement to sell on 28.5.1984. He further held that a sum of Rs. 29.000/ was given to Aizaz Ali and the defendent No. 1 Ahmad Bari was bound to execute the sale deed. In regard to the issues 4 and 7, it was held by the learned Munsif that the possession had not been delivered to Ranjit Singh and Ahmad Bari was in possession over this land. On issue No 8, his finding is that Abdul Bari had died on 16.3.1983 but he did not record any finding as to the effect of the death of Abdul Bari prior to the execution of the agreement to sell. As a result of these findings, learned Munsif decreed both the suits. In suit No. 62 of 1986, he directed Ahmad Bari to execute sale deed in favour of Ranjit Singh and in suit No. 158 of 1987, he restrained Ranjit Singh from interfering with the possession of Ahmad Bari till the execution of the sale deed.

Aggrieved by this decision of the learned Munsif, two separate appeals were filed by the parties which were ultimately transferred to the Court of 1st Additional District Judge, Lakhimpur Kheri. Learned Additional District Judge has disposed of these appeals by a common judgment dated 25.9.1991. He dismissed the CiviJ Appeal No. 50 of 1991 arising from Suit No. 62 of 1986 but allowed the Civil Appeal No. 49 of 1991, filed by Ranjit Singh against the decision in Suit No. 158 of 1987 holding that Ranjit Singh, and not the appellant was in possession. Learned Additional District Judge has confirmed the finding of the learned Munsif regarding the execution of Power of Attorney dated 22.5.1969 and the agreement to sell dated 28.5.1984 and also as to the liability of the appellants to execute the sale deed in respect of the plot in question. In regard to the plea raised on behalf of Abdul Bari that Aizaz Ali had no power to execute the agreement to sell after the death of Abdul Bari, the learned Addl. District Judge has held that the authority of Aizaz Ali continued in this regard in view of Section 208 of the Indian Contract Act and Section 3 of the Power of Attorney Act. He has also recorded a finding on the issue remitted by this Court, that Ranjit Singh and Aizaz Ali had no knowledge of the death of Abdul Bari on or before 28 5.1984 when the agreement to sell was executed.

7, The appellants have now come up in these second appeals No. 375 of 1991 and 376 of 1991 against the decision in first apeal Nos. 49 of 1991 and 50 of 1991 respectively. The findings of the Courts below have been challenged on the grounds that the plaintiff, Ranjit Singh already had 4 or 5 acres land and proposed transfer of 16.67 acres land will be violative of Section 154 of the U P. Zamindari Abolition and Land Reforms Act, 1950, according to which land cannot be transferred to a person if, together with land so transferred, the land held by him exceeds 12.50 acres, agreement to sell could not have been executed after the death of the principal, Abdul Bari, and the learned 1st Appellate Court has misinterpreted the provisions of Section 208 of the Contract Act and has committed substantial error of law in considering this plea without there being any pleading in this regard. Other findings regarding execution of power of attorney and delivery of possession to Ranjit Singh have also been challenged. The appeals were admitted on 9.10.1991 and the following substantial questions of law were formulated :

Whether the agreement for sale dated 28.5.1984 is void on account of the fact that the Power of Attorney executed by Abdul Bari in favour of Aizaz Ali stood terminated on account of the death of Abdul Bari on 16.3.1983 ?

What is the effect of Section 208 of the Contract Act and Section 3 of the Powers of Attorney Act. 1382 in the facts and circumstances of the case ?

Besides the above questions, following issue was remitted to the 1st appellate Court by order dated 13.4.1992, passed by the learned Judge who had earlier heard this appeal :

Whether Ranjit Singh and Aizaz Ali had knowledge of the death of Abdul Bari before or after May 28, 1984, the date of execution of the alleged agreement for sale and if so on what date ?

Learned counsel for the appellant also moved an application before this Court for formulating some other questions also for hearing and it was directed, on that application, that necessary directions in this regard will be given, if considered necessary, during or after hearing the parties. During argument, Shri Umesh Chandra, learned counsel for the appellants prayed that he may be permitted to raise the pleas of invalidity of the agreement for sale on the grounds that it is violative of Sections 154, 166, 167 and 168A of the U. P. Zamindari Abolition and Land Reforms Act and also Section 23 of the Contract Act and Section 32 of the Registration Act. He also challenged the finding of the first appellate Court in regard to the possession of Ranjit Singh as perverse and bad in law. He submitted that these are purely questions of law and no additional evidence will be required in regard to these pleas. Since the questions raised were only limited to questions of law, learned counsel for both the parties, namely, Shri Umesh Chandra, for the appellants, and Shri K. B. Sinha, for the respondents, were permitted to address this Court on these legal points and they have made lengthy and exhaustive submissions in this regard.

I have heard learned counsel for the parties at some length. There is concurrent finding of fact of the trial Court and the 1st appellate Court that Abdul Bart, who was admittedly the owner of the plot in question, had executed a general power of Attorney dated 22.5.1969 in favour of Aizaz Ali and that Aizaz Ali executed an agreement for sale dated 28.5.1984 in favour of respondent Ranjit Singh. It has also been held by both the courts below that a sum of Rs. 29,000/ was paid by Ranjit Singh as a consideration for sale. These being concurrent finding of facts, they are not open to challenge in the second appeal.

Learned counsel for the appellants, however, sought to challenge the execution of the Power of Attorney and also raised the contention that this alleged power of Attorney does not empower the execution of an agreement for sale. These Pleas cannot be allowed to be raised in view of clear provision of section 100 C. P. C. and fully established legal position. Section 100 C. P. C. clearly provides that second appeal can be admitted by the High Courts if the case "involves a substantial question of law." Sub Section (4) of Section 100 provides that "Where the High Court is satisfied that a substantial question of law is involved in any case it shall formulate that question " Sub Section (5) further provides that "appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question''''. Proviso to Sub Section (5), no doubt, empowers the Court to hear the appeal on any point not formulated but that point again has to be in respect of "substantial question of law." The plea raised by the learned counsel cannot be said to involve substantial question of law.

In Deity Pattabhiramaswamy v. S. Hanymayya and others 1959 SC 57, Hon''ble Supreme Court has held that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact. Hon''ble Supreme Court has observed as follows :

"The provisions of Section 100 are clear and unambiguous. As early as 1891, the Judicial Committee in Durga Chowdhrani v. Jawahir Singh 17 Ind App 122 (PC), stated thus :

"There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be."

In The Midnapur Zemindari Company Limited v. Uma Charan Mandal and Others 1929 Cal WN 131 : (AIR 1923 Privy Council 187), the Privy Council illustrated the principle by pointing out :

If the question to be decided is one of the fact which does not involve an issue of law documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents, have to be considered."

Nor it is the fact that the finding of the First Appellate Court is based upon some documentary evidence make it any less a finding of fact (see ILR 11 Lah 199, : (AIR 1930 PC 91)."

In State of U.P. v Ram Chandra Trivedi AIR 1976 SC 2547, Hon''ble Supreme Court referred to a number of earlier decisions and reiterated the principle that finding of fact cannot be interfered with in second appeal. The apex Court has observed as follows in para 25 of the report :

"We also find ourselves in agreement with the contention advanced on behalf of the appellant that the High Court failed to appreciate the true legal and constitutional position and upset the concurrent findings of fact arrived at by the Courts below that the impugned order was not by way of punishment ignoring the well settled principle of law that a second appeal cannot be entertained on the ground of erroneous finding of fact, however gross the error might seem to be. (See Paras Nath Thakur v. Smt. Mohani Dasi, (1960) I SCR 271 : (AIR)1959 SC 1204); Sri Sinha Ramanuja Jeer, (1962) 2 SCR 509 : (AIR 1961 SC 1720); R. Rama Chandra Ayyar v. Ramalingam, (1963) 3 SCR 604 : (AIR 1963 SC 302) and Madamanchi Ramappa v. Muthaluru Bojappa, (1964) 2 SCR 673 : (AIR 1963 SC 1633) "

In Jangbir v. Mahavir Prasad Gupta AIR 1977 SC 27. Hon` Supreme Court has held :

"We think that, unless interpretation of a document involves the question of application of a principle of law mere inferences from or the evidentiary value of a document generally raises only a question of fact."

In Bruce v. Silva Raj and others 1987 (Supp) SCC 161, the Apex Court has observed :

"These two documents had been considered by the courts of fact along with a host of other documents and it was not a case where the courts of fact had overlooked them. It was not open to the High Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure to enter into a reappreciation of the evidence and interfere with findings of fact."

In Ram Briksha Singh and others v. Rudra Narain Singh and another AIR 1986 Allahabad 19, the plea raised in the second appeal was in respect of the finding regarding execution of agreement. This Court refused to consider the plea in second appeal and observed as follows in para 22 of the Report ;

"The question whether Ext. I was executed by Smt. Dhanwanti or not was a question of fact which has been decided by the lower appellate Court in favour of the plaintiff. Similarly, the question of genuineness of Ext I was again a question of fact and it is not open to me to reverse that finding of fact in second appeal. In Satya Dev v. Behariji Maharaj Birajman Mandir, reported in AIR 1980 All 220, it was held that a question whether a document is genuine or not was purely a question of fact and interference in second appeal is not permissible. The learned Judge relied upon Durga Choudharain v. Javahar Singh (1890) 17 Ind. App. 122 which is the leading case on the point. Ram Chandra v. Ramalingam, AIR 1963 SC 302 (Supra) and Afsar Shaikh v. Soleman Bibi, AIR 1976 SC 163 were also cited."

In Nedunuri Kameswaramma v Sampati Subba Rao AIR 1963 SC 884, Hon''ble Supreme Court has held :

"A construction of documents (unless they are documents of title) produced by the parties to prove a question of fact does not involve an issue of law, unless it can be shown that the material evidence contained in them was misunderstood by the Court of fact. The documents in this case, which have been the subject of three separate considerations, were the Land Registers the Amarkam, and Bhooband Accounts and the Adangal Registers, together with certain documents derived from the Zamindari records. None of these documents can be correctly described as a document of title, whatever its evidentiary value otherwise. We do not, however, wish to rest our decision on this narrow ground even if right, because the legal inference from the proved facts may still raise a question of law."

In Mohammad Ibrahim Khan Ikramkhan v. Sugrabi Abdul Rashid and others AIR 1955 Nagpur 272 a Division Bench of the Nagpur High Court has held :

"The construction of a document and the meaning of words is a question sometimes of law and sometimes of fact. A decision as to the meaning of words is undoubtedly a question of fact, as has been laid down by Lindley C. J. in Chatenay v. Brazlin'' Submarine Telegraph Co. (1891) 1 WB 79 at p. 85 (H), noted by Sarkar in his Law of Evidence, 9th Edition, page 737. On the other hand, their Lordships of the Privy Council have laid down in ''Sahebrao v. Jaiwant

Rao AIR 1933 PC 171 at p. 175(1), that unless there has been misconstruction a mistaken inference from documents is an error, not of law but of fact."

In Amar Nath Misra and others v Trilochandas Dutta and others AIR (30) 1943 Calcutta 565, it was contended before the High Court that, the mortgage deed be considered as meaning that the mortgagor was to have as security only the right to receive the cash portion of the rentals and to hold that portion of the rental of this tenure which was payable in kind was not mentioned because that represented a liability not to the zamindar but to a deity. The High Court refused to consider this plea in second appeal and observed :

''''I do not think it is open to me to construe this document in second appeal. The construction of the mortgage deed for the purpose of ascertaining whether it contains an admission that no portion of the rent was payable in kind, is a question of fact upon which both the Courts below have found against the plaintiff. In 35 C. L J. 182 earlier cases were referred to, and it was held, following the decision of Sir Richard Couch C. J. in 19 W. R. 222 that the misconstruction of a document which is alleged to contain an admission, that is to say, a misappreciation of the meaning and effect of an admission is not a question of law which can be raised in second appeal,"

It is thus obvious from the catena of decisions noted above, that the question as to the execution of a document and as to its terms is a question of fact and it cannot be agitated in second appeal. In the present case, as noted above, both the Courts below have held that power of Attorney dated 16.8.1969 was executed by Abdul Bari in favour of Aizaz Ali and that Aizaz executed an agreement to sell on 28.5.1984 in exercise of this power. These being finding of fact, no plea in regard to these findings can be allowed to be raised in the second appeal.

Even if it were possible to look into the terms of this agreement, it is not possible to accept the submission of the learned counsel for the appellants that the Power of Attorney merely gave authority for execution of sale deed and did not authorize him to execute an agreement to sell. The relevant part of the Power of Attorney reads as follows :

The words underlined in the above extract of Power of Attorney leave no manner of doubt that Aizaz Ali was given authority not only to execute the sale deed but also to undertake all steps necessary for the purpose. He was not only permitted to execute the sale deed under his signatures but also to complete the transaction. It is quite obvious that negotiations for sale precede the execution of the sale deed. An agreement has to be arrived at before the execution and completion of the sale. This agreement may be oral or in writing but such an agreement is imperative for the purpose of execution of the sale deed. The words leave no doubt that the authority conferred was exhaustive and it included the power to execute an agreement to sell.

22 This view finds support from the express provision of the Indian Contract Act and also from a number of decisions of Hon''ble Supreme Court and High Courts. Section 186 of the Contract Act lays down that "The authority of an agent may be express or implied". Section 187 of the Act, inter alia, provides that "an authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case". This principle of implied authority is further codified in Section 188 of the Act which reads as follows :

"188. Extent of agent''s authority. An agent having authority to do an act has authority to do every lawful thing which is necessary in order to do such act.

An agent having an authority to carry on a business has authority to do every lawful thing necessary for the purpose, or usually done in the course of conducting such business."

Section 188 of the Contract Act has been subject matter of the interpretation in a number of decisions. In Bank of Bengal v. Ramanathan Chetty and others AIR 1915 Privy Council 121, the Power of Attorney entitled the agent to borrow on behalf of the Principal for the purposes of lending money to others. It was held by the Privy Council that this authority implied an authority to pledge the credit of principal for the purpose of obtaining or securing advances from others to constituents. The Privy Council observed :

"Where an act purporting to be done under a powerofattorney is challenged as being in excess of the authority conferred by the power, it is necessary to show that on a fair construction of the whole instrument the authority in question is to be found within the four corners of the instrument, either in express terms or by necessary implication."

In K. Appa Rao v. Gopal Doss and another AIR (33) 1946 Madras 42, a Division Bench of the Madras High Court has held :

"When an agent is authorised to negotiate and complete a sale for a specified price within a particular time, it gives him authority to enter into a contract for sale, whether it be for immovable or moveable property."

In U P. Government in Nazul Department, Lueknow v. Church Missionary Trust Association Limited, London and Allahabad AIR (35) 1948 Oudh 54, it has been held that, where power of attorney is given for various purposes, governing object being power to sell, all other purposes must be read as ancillary to governing object.

In Ram Lal Singh and others v. Mt. Bibi Shahrunnissa and others 1922 Patna 559, it was held with reference to an earlier decision that a distinction may be drawn between a power to sign a document and a power to execute a document. It was further held that "the power to execute a document carries with it the necessary powers to enter into the transaction itself."

It will appear from the above noted decisions that, if a power is given to the agent to execute the sale and not merely to sign a document, that power will include all transactions necessary for the purpose. If an authority is given to complete a sale, it will include an authority to enter into an agreement to sell.

Nothing to the contrary would appear to have been laid down in the decisions relied upon by the learned Counsel for the appellants. In Janki Prasad Singh and others v. Syed Yahia Hossain and others, XIII, Indian Cases, 637 it has been held that the Power of Attorney authorised the husband to execute, amongst other documents, deeds of sale and to admit execution thereof before the Registering officer. The Calcutta High Court held that "this powerofattorney obviously does not authorise the husband to enter into an agreement for sale of the property owned by his wife." Facts of the present case are obviously quite different. As already indicated above, in the present case. PowerofAttorney does not merely authorise the agent to execute the deed of sale but also authorises him to complete the sale and also to do all acts relating thereto while the agreement referred in Calcutta case was confined to the execution of the deed and admission of the execution before the Registering Officer. Quite obviously where authority is given to merely execute a document, present it for registration, it may not include the authority to enter into the transaction of sale. But where the authority conferred also provides that the transaction of the sale be completed and all acts in relation thereto may be performed, it would include the power to enter into an agreement for sale.

The second case, namely, Chatterjee Brahmin v. Durgadutt Agarwala and others AIR 1916 Calcutta 507, relied upon by the learned counsel for the appellants, does not relate to the power to do all acts necessary as in the present case. In that case, the Power of Attorney authorised the agent to manage the business of the principal, to continue, institute, prosecute, defend or oppose all the suits that were or might be brought by or against the principal in respect of his business and property. It was held that this power did not include the power to compromise. This inference is quite obviously based on the fact that the power conferred was specific and confined to the continuance, institution, prosecution, defence or opposition of the suits and this could not necessarily include power to compromise. There was no general power given for doing all acts necessary in this regard as is the case in the instant appeals.

In O.A. P. R. M. A. R. Adaikappa Chettiar v. Thomas Cook & Son (Bankers) Limited AIR 1933 Privy Council 78, the Privy Council has observed that "general words used in the subsequent clauses of a power of attorney must be read with the special powers given in the earlier clauses and cannot be construed so as to enlarge the restricted powers there mentioned." In the present case, as already indicated above, there is a specific power not only to execute the sale deed but also complete the sale and it is further provided that all acts may be done. It has also been indicated above, that these averments are wide enough to include the power to execute an agreement to sell.

In the matter of Commissioner of Incometax AIR 1935 oudh 305, the Power of Attorney empowered the agent to file suits, enter into settlements in the various departments etc., file any application, plaint etc. and undertake all such proceedings. It was held that this did not include the power to sign, verify or file returns before the Incometax officer. The facts of this case are quite distinguishable from the instant case. As already noted, the express words of power of attorney lead to the inevitable inference that power to execute agreement to sell is implicit therein.

In the last case relied upon by the learned counsel, namely, H Ezekiel v. Carew & Co. Ltd AIR 1938 Calcutta 423 also, Calcutta High Court has observed that "a power of attorney must be construed strictly, and general words must be interpreted in the light of the special powers, although they include incidental powers necessary for carrying out the authority." The legal proposition mentioned is quite correct but not so the inference that, on strict interpretation, any different result will follow.

Accordingly, it must be held that, even if it were open to the appellants to raise the plea that the Power of Attorney did not confer the power to execute the agreement to sell, it must be held, on the interpretation of the power of attorney, that such power is clearly mentioned therein and, in any case, must necessarily be implied from the express words.

The learned counsel for the appellant, however, challenged the validity and enforceability of the agreement to sell on a number of grounds. The grounds of attack are:

i) The Principal, Abdul Bari died on 16.3.1983 and as such, the attorney, Aizaz Ali had no power to execute the agreement to sell on 28.5.1984.

ii) The finding of lower appellate Court that Aizaz Ali had power to execute the agreement for sale in view of Section 208 of the Contract Act was given without there being any pleading and is erroneous in law.

iii) This Court had no jurisdiction to frame an issue in regard to the date of knowledge regarding death of Abdul Bari and the finding or the evidence recorded by the 1st appellate Court cannot be looked into.

iv) The agreement for sale and execution of sale deed will be violative of Section 23 of the Contract Act in as much as such a transaction will be violative of Sections 154, 166 and 168A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as Z. A. L. R. Act).

It is not possible to accept the submission of the learned counsel for the appellant that this transaction and the directions of the Courts below in regard to the specific performance of agreement for sale are invalid on the ground that such a sale will be violative of Section 23 of the Contract Act. The submission of the learned counsel for the appellant was that, according to Section 154 of the Z. A. L. R. Act, no bhumidhar shall have the right to transfer by sale or gift where the transferee shall, as a result of such sale or gift, become entitled to land which together with land, if any, held by his family will in the aggregate, exceed 12.50 acres. The line of argument of the learned counsel was that, if such a transfer by sale is made, it will be void under Section 166 of the Act and the result would be that the subject matter of transfer shall be deemed to have vested in the State Government with effect from the date of transfer as provided under Section 167 of the Act, It was contended that, according to Section 23 of the Contract Act, any transaction the object of which is forbidden by law or is of such a nature that, if permitted, it would defeat the provision of any law will be void. Accordingly, if such a transfer is made, which is void under Section 166 of the Z A. L. R. Act, it will be hit by Section 23 of the Contract Act.

Before this plea is considered, the preliminary objection raised by the learned caunsel for the respondents in this regard, namely that these pleas have not been raised before the lower Courts and should not be allowed to be raised in the second appeal must be disposed of. In regard to this submission, learned counsel has relied upon the decisions in Messrs. Trojan & Co. v. R. M N. N. Na gap pa Chettiar AIR 1953 Sup. Court 235, Sheodhari Rai and others v. Suraj Prasad Singh and others AIR, 1954 SC 758 and Mrs. Om Prabha Jain v Abnash Chand and another AIR 1968 SC 1083. It is sufficient to say that in none of these decisions, it has been laid down that the parties may not be allowed to raise purely legal pleas in second appeal. In all these cases, question related to the absence of factual pleas and it was held that if the plea is not taken, no evidence can be permitted in that regard and the decision of a case cannot be based on grounds out of pleadings. On the other hand, it is quite obvious from the proviso to Section 100 C. P. C. and is an established legal position that, not only legal pleas can be allowed to be raised in the second appeal but it is the Court''s duty also to notice such legal pleas even if these are not raised by the parties. Thus in Immani Appa Rao v. G. Ramalingamurthi AIR 1962 SC 370 Hon''ble Supreme Court has observed as follows :

"Although illegality is not pleaded by the defendant nor sought to be relied upon by him by way of defence, yet the Court itself, upon the illegality appearing upon the evidence, will take notice of it, and will dismiss the action ex turpi causa non oritur actio. No polluted hand shall touch the pure fountain of justice."

In this case, Hon''ble Supreme Court adopted the rule enunciated by Lord Mansfield, C. J. in Holman v. Johnson, (1775) 1 Cowp 341 and observed :

"No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff''s own stating or otherwise the cause of action appears to arise ex turpi cause or the transgression of a positive law of this Country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff."

In Surasaibalini v. Phanindra Mohan AIR 1965 SC 1364, Hon''ble Supreme Court has held :

"Where a contract or transaction exfacie is illegal there need be no pleading of the parties raising the issue of illegality and the Court is bound to take judicial notice of the nature of the contract or transaction and mould its relief according to the circumstances."

In Mohanlal v. Kashiram AIR 1950 Nag. 71 Nagpur High Court has observed as follows :

"Courts are bound to take notice of any ground of illegality appearing on facts stated in a party''s pleading or disclosed otherwise though his opponent does not raise it in his pleading."

In Gulabchand Gambhirmal v. Kudilal Govindram and another AIR 1959 Madhya Pradesh 151, the Full Bench of Madhya Pradesh High Court has observed :

"Though the object of the agreement is lawful in itself it would be unlawful if it cannot be achieved without violation of law or without doing something immoral or opposed to public policy. A contract to do a thing which cannot be performed without violation of law is void, whether the parties knew the law or not. Likewise, the object of the contract may be lawful in itself but its fulfillment may offend against the wellsettled notions of public policy."

The full Bench further observed as follows :

"Where the parties have completely presented the case before the court and the illegality of the contract on the ground of public policy has been brought to the notice of the Court having regard to the words of S. 23 of the Contract Act, it is the duty of the Court to give effect to the fact thus brought to its notice although the illegality is not raised in the pleadings."

Thus if the question raised is a pure question of law, there is no legal prohibition in raising of such plea before the appellate Court and the appellate Court is bound to take notice of such a plea even in absence of pleading. Accordingly, the preliminary objection raised by the learned counsel for the respondent against the consideration of such plea must be found to be untenable.

Before proceeding further, it may, nevertheless, be observed that there is sufficient basis in the pleadings of the appellants in regard to this plea. It has been stated in the written statement that the respondent Ranjit Singh already possesses 45 acres of land and, accordingly; transfer in his favour will be illegal. Even if this plea were not there, the agreement to sell clearly indicates and it is not disputed that the proposed sale is of more than 12.50 acres. Therefore, there is a factual basis for this legal plea. This factual position has not been disputed by the respondent Ranjit Singh at any stage.

It is, however, difficult to accept the submission of the learned counsel for the appellants based upon Sections 154, 166 and 167 of the Z.A L.R Act or Section 23 of the Contract Act. No doubt, Section 23 of the Contract Act lays down that the consideration or object of an agreement will be unlawful if "it is forbidden by law", or is of such nature that, if permitted, it would defeat the provisions of any law "and it is also provided in this Section that "every agreement of which the object or consideration is unlawful is void." However, the question is as to whether a transaction in violation of Section 154 of the Z.A.L.R. Act will be abinitio void ?. The answer of this question must be in the negative on the basis of the provision contained in Sections 154, 166 and 167 of the Z. A. L. R. Act and also on the authority of Hon''ble Supreme Court and of this Court. It will be worthwhile to reproduce these Sections :

"154. Restriction on transfer by a bhumidhar''. (1) Save as provided in subsection (2), no bhumidhar shall have the right to tranfer by sale or gift, any land other than tea gardens to any person where the transferee shall, as a result of such sale or gift, become entitled to land which together with land, if any, held by his family will in the aggregate, exceed 5.0586 hactares (12 50 acres )in Uttat Pradesh.

(2) Subject to the provisions of any other law relating to the land tenures for the time being in force, the State Government may, by general or special order, authorise transfer in excess of the limit prescribed in subsection (1) if it is of the opinion that such transfer is in favour of a registered cooperative society or an institution established for a charitable purpose, which does not have land sufficient for its need or that the transfer is in the interest of general public.

Explanation For the purposes of this section, the expression ''family'' shall mean the transferee, his or her wife or husband (as the case may be) and minor children, and where the transferee is a minor also his or her parents."

"166. Every transfer made in contravention of the provisions of this Act shall be void.

"167. (1) The following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely

(a) the subjectmatter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances ;

(b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances ;

(c) the transferee may remove other moveable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed."

(2) Where any land or other property has vested in the State Government under subsection (1), it shall be lawful for the Collector to take over possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom. For the purposes of taking over such possession or evicting such unauthorisedoccupants, the Collector may use or cause to be used such force as may be necessary.''''

It will be noticed that the transaction of sale in violation of provisions of Section 154 will not be ipso facto void in the sense that the person to whom such a transfer is made will be disentitled to possess the land from the very beginning. It is true that Section 166 declares every transfer made in contravention of the provisions of this Act void but it is important to note that the consequence of such a transfer will be as mentioned in Section 167, of the Act. According to Section 167, the effect of such a transfer will be that ''such land'' which could not have been transferred in view of Section 154 of the Act, shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances. SubSection (2) of Section 167 is important and this importance Iies in the fact that where such land or property vests in the State Government under subsection (1), transferee does not automatically become disentitled to the right of possession over this land and he may continue in possession until the Collector takes over the possession over ''such land'' and directs that any person occupying such land or property be evicted therefrom. The provisions now contained in Section 167 of the Act are substantially the same as were earlier contained in Section 163 of the Act but with this relevant modification that, in the earlier Sec. 163, it was provided that in case of such transfer, it will be open to the Gaon Sabha to file a suit for eviction of such a transferee from ''such'' land. Now. instead of Gaon Sabha taking those formal proceedings, this could be done by the Collector in a summary proceeding under subsection (2) of Section 167 of the Act. Accordingly, the transfer which is in contravention of Section 154 of the act will neither be void as such in the aforesaid sense nor its object will be deemed to be forbidden by law; nor it would be considered to defeat the provision of any law. Indeed, there is nothing to indicate that the intention of the parties was to enter into an agreement which was forbidden by law or it was to defeat the provisions of any law. Both the transferor and transferee were undoubtedly agriculturist and there was no prohibition in transferring land to respondent, Ranjit Singh. Transfer of land which will not have the effect of Ranjit Singh possessing more than 12.50 acres of land will not be bad in law even according to Section 154 of the Act. Accordingly, it is difficult to accept the submission that the proposed sale will be violative of Section 23 of the Contract Act.

Similar situation arose in the case of Jambu Rao Satappa Kocheri v Neminath Appayya Hanammannaver (1968) 3 SCR 706. That case related to the transfer of land in contravention of the provision of ceiling contained in Bombay Tenancy and Agricultural Lands Act 1948. Section 5 of the Act provided a ceiling limit. Section 34 (1) of the Act provided for restriction in holding land in excess of the ceiling area and Sections 35 and 84C of the Act provided for consequences. It will be worthwhile to reproduce these provisions :

"34(1). "Subject to the provisions of Section 35, it shall not be lawful, with effect from the appointed day, for any person to hold, whether as owner or tenant or partly as owner and partly as tenant, land in excess of the ceiling area."

"Where on account of gift, purchase, assignment, lease, surrender or any other kind of transfer inter vivos or by bequest except in favour of recognised heirs and land comes into the possession of any person and in consequence thereof, the total land held by such person exceeds the area, which he is authorised to hold under section 34, the acquisition of such excess land shall be invalid."

84C "(1) Where in respect of the transfer of acquisition of any land made on or after the commencement of the Amending Act, 1955, the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of this Act, the Mamlatdar shall issue a notice and hold an inquiry as provided for in section 84B and decide whether the transfer or acquisition is or is not invalid.''''

"(2) If after holding such inquiry, the Mamlatdar comes to a conclusion that the transfer or acquisition of land is invalid, he shall make an order declaring the transfer or acquisition to be invalid."

"(3) On the declaration made by the Mamlatdar under subsection (2),

(a) the land shall be deemed to vest in the State Government, free from all encumbrances lawfully subsisting thereon on the date of such vesting, and shall be disposed of in the manner provided in aubsection (4)."

It was contended before the Hon''ble Supreme Court that, since the transfer of a land in excess of the ceiling area was declared to be invalid under section 35 of the Act, such a transfer would be violative of section 23 of the Contract Act. Hon''ble Supreme Court rejected this contention holding that the scheme of the Act makes it clear that the Legislature has not declared the transfer invalid because section 84C provided that the land in excess of the ceiling shall be at the disposal of the Government when order is made by Mamlatdar. Hon''ble Supreme Court observed as follows :

''By S. 23 of the Contract Act, consideration or object of an agreement is unlawful if it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent. Both the parties to the contract are agriculturists. By the agreement the appellant agreed to sell jirayat land admeasuring 41 acres 26 gunthas for a price of Rs 32.000/. The consideration of the agreement per se was not unlawful, for there is no provision in the Act which expressly or by implication forbids a contract for sale of agricultural lands between two agriculturists. Nor is the object of the agreement to defeat the provisions of any law. The Act has imposed no restriction upon the transfer of agricultural lands from one agriculturist to another. It is true that by S. 35 a person who comes to hold, after the appointed day, agricultural land in excess of the ceiling, the lands having been acquired either by purchase, assignment, lease, surrender or by bequest, the acquisition in excess of the ceiling is invalid. The expression "acquisition of such excess land shall be invalid" may appear some what ambiguous. But "when the scheme of the Act is examined, it is clear that the Legislature has not declared the transfer or bequest invalid, for S. 84 C provides that the land in excess of the ceiling shall be at the disposal of the Government when an order is made by the Mamlatdar. The invalidity of the acquisition is therefore only to the extent to which the holding exceeds the ceiling prescribed by S. 5, and involves the consequence that the land will vest in the Government.

By the acquisition declared invalid under S. 35, the land does not revert to the transferor or the testator; the land is deemed to be of the ownership of the person acquiring it by transfer or by bequest and on the Mamlatdar making the order, the land in excess of the ceiling vests in the Government. It only will mean that the purchaser will not be entitled to hold the land in excess of the ceiling and the excess will be at the disposal of the Government."

Hon''ble Supreme Court further observed as follows :

"An agreement to sell land does not under the Transfer of Property Act create any interest in the land in the purchaser. By Agreeing to purchase land, a person cannot be said in law to hold that land. It is only when land is conveyed to the purchaser that he holds that land. Undoubtedly the respondent was holding some area of land at the date of the agreement and at the date of the suit, but on that account it cannot be inferred that by agreeing to purchase land under the agreement in question, his object was to hold in excess of the ceiling It was open to the respondent to transfer or dispose of the land held by him to another agriculturist. The Act contains no general restrictions upon such transfers, and unless at the date of the acquisition the transferee holds land in excess of the ceiling, the acquisition to the extent of the excess over the ceiling will not be invalid. There is nothing in the agreement, nor can it be Implied from the circumstances, that it was the object of the parties that the provisions of the Act relating to the ceiling should be transgressed. The mere possibility that the respondent may not have disposed of his original holding at the date of the acquisition of title pursuant to the agreement entered into between him and the appellant will not, in our judgment, render the object of the agreement such, that, if permitted, it would defeat the provisions of any law. The Court, it is true, will not enforce a contract which is expressly or impliedly prohibited by statute, whatever may be the intention of the parties, but there is nothing to indicate that the. Legislature has prohibited a contract to transfer land between one agriculturist and another. The inability of the transferee to hold land in excess of the ceiling prescribed by the statute has no effect upon the contract, or the operation of the transfer. The statutory forfeiture incurred in the event of the transferee coming to hold land in excess of the ceiling does not invalidate the transfer between the parties.

We hold that a contract for purchase of land entered into with the knowledge that the purchaser may hold land in excess of the ceiling is not void, and the seller cannot resist enforcement thereof on the ground that, if permitted, it will result in transgression of the law."

Such a question was also considered by this Court in a number of decisions. In Jai Prakash v. Deputy Director of Consolidation and Others 1970 AWR 670, this Court observed as follows :

�A transfer made in contravention of Section 154 of the U. P. Zamindari Abolition and Land Reforms Act is not void, the only liability which is incurred by a transferee in the case is that they are liable to ejectment under Section 163 of the U.P. Zamindari Abolition and Land Reforms Act, till they are ejected the transferee continues to be the tenureholder of the property purchased. The right of the transferee is only affected when there is a suit by the Gaon Sabha for ejectment. Till then the transferee has good title in the property transferred."

In Kripashankar v. Director of Consolidation 1979 AWC 458, this Court has held :

"The effect of the contravention of Section 154 has been specified in Section 163 and all that Section 163 provides is that where such a transfer in contravention of Section 154 has been made the transferee shall be liable to ejectment but the question is from what portion he is liable to be ejected ? The section provides "the transferee shall, notwithstanding anything in the law, be liable to ejectment from such holding or part." The expression ''holding or part" which undoubtedly refers to the holding or part that has been transferred by the Bhumidhar, is preceded by the word "such" and that whole expression "such holding or part" clearly means that holding or part thereof which has been transferred in contravention of Section 154. In other words the use of the word "such" clearly suggests that the ejectment should be from the land transferred in contravention of Section 154 that is to say, from the land in excess of the prescribed limit."

In Ambika Prasad v. D. D, C. and Others 1987 RD 403, the case was similar to the instant case. In that case, a sale deed was executed by the Additional Munsif, Bahraich in favour of the petitioner in suit for specific performance filed by him against Suraj Dei on the basis of agreement to sell executed by Smt Sarju Dei,, The Deputy Director of Consolidation, before whom the matter came in revision, held that the sale deed was void on the ground that it was hit by Section 154 of the U. P. Z. A. L. R. Act because the petitioner held land more than 12.50 acres including the land sold to him through the aforesaid sale deed. He, accordingly, held that the sale deed was void and directed that the land be recorded in the name of Gaon Sabha. The petitioner then filed the writ petition. This Court held :

�..........................transfer made in contravention of Section

154 of U. P. Zamindari Abolition and Land Reforms Act is not void but voidable only to the extent the land transferred, together with the land held by the transfereetenure holder, exceeds the prescribed limit of 121/2, acres. The transfer even in respect thereof will not be void although the transferee may be liable to ejectment by the Gaon Sabha. He would ontinue to be tenure holder of the land purchased and so mutation cannot be refused merely on the ground that the vendee would be liable to ejectment on a suit filed by Gaon Sabha from the purchased land to the extent it exceeds the prescribed limit of 121/2 acres'' specified in Section 154 of the Act."

This Court further held :

�.............................The only liability which is incurred by the transferee in such cases would be that he will be liable to ejectment by the Gaon Sabha. The right of the transferee is affected only when there is suit by the Gaon Sabha for his ejectment and such suit is decreed. Till then the transferee will hold good title in the property covered by the sale deed which cannot be held to be void, but voidable to certain extent as aforesaid."

48, It was suggested that Section 163, on which these decisions are based, has since been omitted with effect from 3.6.1981 by U. P. Act No. 20 of 1982. As already indicated above, by the said Amendment Act, provision similar to 163 has been incorporated in Section 167 of the Act with the only difference that now the power of eviction lies with the Collector instead of Gaon Sabha. In this connection, it may, however, be observed that the provisions contained in Bombay Tenancy Act, which have been authoritatively interpreted by Hon''ble Supreme Court in Jambu Rao''s case, are similar to the provisions now contained in Sections 154, 166 and 167 of the Z. A. L. R. Act. Accordingly, on the interpretation given by Hon''ble Supreme Court, the only inference could be that such a transaction will not be void or will not defeat the provisions of any law. The same inference will appear from the decisions of this Court, noted above. It must, therefore, be held that the agreement to sell or the sale will not be barred by Section 23 of the Contract Act and the submission of the Learned counsel for the appellants to this effect must be found to be untenable.

Nothing to the contrary would appear to have been laid down in the decision cited by the learned counsel for the appellants. Even if anything contrary has been laid down in these decisions, they cannot be relied upon in the view of the decision of Hon''ble Supreme Court and of this Court no ed above. In Moti Chand and others v. Ikramullah Khan XXXIX PC 173, it was noted by their Lordships of the Privy council that the policy of Agra Tenancy Act (II of 1991) was to secure and preserve to a proprietor, whose proprietary rights in a mahal or in any portion of it are transferred otherwise than by gift or by exchange between cosharers in the mahal, a right of occupancy in his "sir" lands, and in the land which he has cultivated continuously for 12 years at the date of the transfer, and that such right of occupancy is by the Act secured and preserved to the proprietor, who becomes by a transfer the exproprietor. However, in order to get over this restriction, an agreement to relinquish the land was entered into. Their Lordships of the Privy Council held that "all such devices, arrangements and agreements are in contravention of the policy of the Act and are contrary to law, illegal and void, and cannot be enforced by the vendee in any Civil Court or in any Court of Revenue. As already indicated above, in the present case, the effect of transfer has been indicated in Section 167 of the Z. A. L. R. Act and in view of what has been observed above in regard to the other decisions, this decision is also quite distinguishable and will be of no help to the appellants.

In Ratan Dei v. Durga Shankar Bajpai and others ILR 39 All 645 also, the case was regarding an agreement to relinquish an exproprietary rights in the sir lands. It was held that such a contract was void and cannot be enforced in the same reason as stated above. This decision also will be of no help to the appellants.

There is another aspect of the matter. As pointed out by Hon''ble Supreme Court in Jambu Rao''s case (1968) 3 SCR 706 (Supra), the invalidity of the transaction will arise only on transfer and not merely on the execution of any agreement to sell. An agreement to sell does not by itself amount to transfer. It will amount to transfer only when the sale deed is executed. It will only be then that question of invalidity of transfer or violation of Section 154 of the Z. A. L. R. Act may arise. It is possible that, before that date, the respondent may transfer his existing land. It is also possible that, in order to be on the right side of law, the parties to such a

transaction may ultimately decide to execute sale deed of not more than 12.50 acres of land. In this connection, it may also be noted that, under Section 167(2) of the said Act, the Collector shall be entitled to take over the possession over "such land" which obviously means the excess land. Accordingly, the Collector will have to determine and specify the portion of the land possession of which should be taken under the said subsection (2) of Section 167,

It is also relevant to note that the entire sale will not be invalid even if it is in excess of the ceiling limit and it will be invalid only to the extent it relates to the land in excess of the ceiling limit. This excess land will not revert to the transferor but will vest in the State Govt.

The next submission of the learned counsel for the appellants was that the transaction will be illegal in view of Section 168 of the Z. A. L. R. Act, according to which a sale of fragment cannot be made. It is not possible to accept this submission either. Section 168A of the Z. A. L. R. Act reads as follows :

"168A, Transfer of fragments. Notwithstanding the provisions of any law for the time being in force, no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of tenureholder who has a plot contiguos to the fragment or where the transfer is not in favour of any such tenureholder (the whole or so much of the plot in which the person has bhumidhari is thereby transferred.)

(2) The transfer of any land contrary to the provisions of subsection (1) shall be void.

(3) When a bhumidhar has made any transfer in contravention of the provisions of subsection (1) the provisions of Section 167 shall mutatis mutandis, apply."

A perusal of this section would indicate that the transaction will be hit by Section 168A only when there is a ''transfer'' and such a transfer is not to a person whose plot is contiguous to the fragment or where the transfer is not in favour of any such tenureholder, the whole or so much of the plot in which the person has bhumidhari rights, which, pertains to the fragment, is thereby transferred. In the present case, the whole of the plot is sought to be transferred. If the parties decide to execute sale deed in respect of a part of this land only, it may, no doubt, be a question of transfer of a fragment but this plea will not be available to the appellants because no factual basis has been laid for such a plea in the pleadings. The factual premises that had to be pleaded and, by evidence, established was that there was no plot of the respondent continuous to the fragment that was being transferred. That being a question of fact, it will not be possible to consider such plea in second appeal. Accordingly, the contention in regard to the alleged violation of Section 168A of the Z. A L. R. Act must also be rejected.

However, there would appear to be considerable force In the submission of the learned counsel for the appellants that the Power of Aizaz Ali came to an end on the death of the Principal, Abdul Bari, on 16.3.1983 and, as such, Aizaz Ali had no authority to execute an agreement to sell in favour of Ranjit Singh on 25.8 1984 Section 201 of the Contract Act, inter alia, provides that an agency is terminated "by either the principal or agent dying". It is no more a question of dispute that Abdul Bari died on 16.3.1983, i.e. before the execution of the agreement for sale. Accordingly, Aizaz Ali had no power to execute the agreement for sale on 28.5.1984.

Learned counsel for the respondent, Ranjit Singh, however contended that, Aizaz Ali must be deemed to have this power even after the death of Abdul Bari, in view of Section 208 of the Contract Act. On the facts of this case and legal position, it is not possible to accept this submission. Section 208 of the Contract Act is in the nature of exception to Section 201 of the Act. This section reads as follows :

"208. The termination of the authority of an agent, does not, so far as Regards the agent take affect before it becomes known to him, or, so far as regards third persons, before it becomes known to them."

The submission of the learned counsel was that neither Aizaz Ali nor the respondent, Ranjit Singh, had any knowledge of the death of Abdul Bari on or before the date of execution of the agreement to sell and, as such, according to Section 208, the power of Aizaz Ali must be held to have continued on the date on which the agreement for sale was executed. This submission must be found to be untenable both on facts and law. In my opinion. Section 208 cannot be applied to a situation where agency terminates on account of the death of the Principal. It may apply in other circumstances. The reason for this intepretation is that, on the death of the principal, the property would devolve on his successors and nothing in Section 208 could bind such successors unless the action is ratified by them. There is a difference between the revocation of authority by death and by the act of the party himself who gave it. The object of Section 208 quite obviously is that, if the agent or the third party has no knowledge of the revocation of the authority by the principal and a transaction is entered into by the agent, the agent or this third person must not suffer on account of the termination of agency and further that the principal must, in such circumstance, be held liable for the act done by the agent. But, where the principal dies, there is obviously no question of binding him by any act performed subsequent to his death and the successors of such principal cannot be bound by the act of an agent appointed by the erstwhile principal.

In the Management of Sri Sivasakthi Bus Service v. P. Gopal and another AIR 1971 Madras 434, the owner of the bus service had executed a power of attorney in favour of one Alangaram Chettiar for conducting the affairs of the bus service. After the death of the owner, this agent continued to work under the power of attorney. His acts were ratified by the legal representatives of the owner. A contention was raised before the Madras High Court that, after the death of the owner, the agent had no authority to continue. The High Court rejected this contention but on the ground that the work of the agent was ratified by the successors of the owner. The Madras High Court observed as follows :

"Even otherwise, it is common practice that if an agent functioning under a written authority of the principal holds himself out as such agent after the death of the principal and if persons competent to ratify his action after the death of the principal ratify the same in a manner known to law, then the agent should be deemed to have acted within the limits of authority and that he validly holds himself out an agent of the subsequent proprietors."

In Mst. Karam Bibi and and others v. Mehr All Khan & others AIR 1933 Lahore 876, the question was as to whether, where a decree holder, who has given power of attorney, dies, the attorney could execute the decree on behalf of the legal representatives The High Court held that power of attorney has to be strictly construed and such attorney, will have right without power of attorney from legal representative himself.

It is, accordingly, obvious that, on the death or the principal, the power of attorney ceases to have effect and the legal representative will not be bound by the act of the attorney of the deceased principal, consequently, the plea of Section 208 of the Contract Act will not be available in such a case.

Even if it be assumed for argument''s sake that the protection of Saction 208 of the Contract Act is available even in the case of death of the principal, then too, this transaction cannot be saved in the facts of this case.

In support of his submission that Aizaz Ali or Ranjit Singh had knowledge of the death of Abdul Bari on or before 28 5.1984, learned counsel for the respondent has relied upon the finding returned by the first appellate Court on the issue remitted to it by order dated 13 4.1992 passed by another learned Judge. The learned counsel for the appellants, however, submitted that this issue could not have been framed nor it could have been remitted to the first appellate Court and further that this bench could legally ignore the order remitting the issue and the finding thereon. On the other hand, learned counsel for the respondent vehemently contended that the order passed by a Bench of this Court cannot be reviewed by another Bench while disposing of the appeal and further that the issue was rightly framed.

No doubt, on the face of it, the contention raised by the learned counsel for the respondent may appear to be plausible but there are authorities for the proposition that any order passed under order 41, rule 25 of the Code of Civil Procedure cannot bind the Court while disposing of the appeal finally and it is open to the Court at the time of hearing of the entire appeal to disregard the finding on those issues and to form its own opinion on the whole case irrespective of anything that is said in the remand order.

In Gogula Gurumurthy and others v. Kurimeti Ayyappa (1975) 4 SCC 458, Hon''ble Supreme Court has approved the following observation made in Gopi Nath Shukul v. Sat Narain Shukul AIR 1923 All 384 :

"Where an appellate Court at the first hearing does not decide the case but merely remits certain specific issues, it is open to the Court before which the case ultimately comes to disregard the findings on those issues and equally to form its own opinion on the whole case irrespective of anything that is said in the remand order"

"An order remanding issues under Rule 25 is not a final order No appeal lies against it. The responsibility for the decree ultimately passed is entirely that of the Court before which the case comes after remand.

"It is quite otherwise with an order of remand passed under Order 41, Rule 23 for this is an order which does finally determine, subject to any right of appeal, the issues which it decides."

Hon''ble Supreme Court also approved the following observation in Upendra Lal Gupta v. Jogesh Chandra Roy AIR 1928 Cal 186 :

"An order of remand made under Order 41, Rule 25 decides nothing. The Court, either the same or as differently constituted, has Jurisdiction, while finally hearing the appeal, to go back on the reasons given or views expressed in the order of remand and must do so when those appear erroneous, (emphasis supplied).

While approving the observations noted above, Hon''ble Supreme Court also observed as follows :

"We consider that when a finding is called for on the basis of certain issues framed by the appellate Court the appeal is not disposed of either in whole or in part. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance."

In Kastur Chand v. Qazi Syed Saifuddin AIR 1983 Bombay 360, the second appeal was broadly heard by a learned Judge of the Bombay High Court and he remitted an issue to the trial Court and directed the trial Court to record a finding as to whether the defendant proved the payment of Rs. 400/ on 15 10.1973 with liberty to the parties to lead any additional evidence on the question as they chose to adduce. While remitting the issues learned Single Judge also observed that the order of the Rent Controller, in fact, meant that nonrealisation of payment of any of the cheques amounts to grant of permission by the Rent Controller to the plaintiff. After remand, both the Courts below reiterated the same finding that defendant failed to prove that he paid Rs. 400/ to the plaintiff. This finding was sought to be challenged before the learned Judge who subsequently heard the appeal and the observations of the learned Judge who remitted the issue, as referred to above, were sought to be relied upon. The learned Judge who finally heard the appeal observed as follows :

"Shri K. H. Deshpande, the learned counsel for the respondent, relying upon Gopinath Shukul v. Sat Narain Shukul (AIR 1923 All 384), Upendra Lal v. Jogesh Chandra (AIR 1928 Cal 186) and Gogula Gurumurthy v. Kurimeti Ayyappa (AIR 1974 SC 1702), submitted that an order of remand under 0. 41, R. 25, C. P. C. in fact, decides nothing and the finding of Tulpule, J while remanding the case is not conclusive between the parties and it can be reopened at the time of final determination of this appeal.

The position of law, to my mind, is abundantly clear. The finding of Tulpule, J recorded in the remand order, under 0.41 R. 25 C. P. C. through enitled to some weight, is certainly neither final between the parties nor binding on me."

Thus it is clear from the aforesaid decisions that any view expressed in the order passed under order 41 Rule 25 C. P. C. is not binding when hearing the appeal and it is open to disregard the finding on the issue so remitted and equally to form own opinion on the whole case irrespective of anything that is said in the remand order. In other words, it will be open to the learned counsel for the appellants to show that farming of issues or remitting it to the first appellate Court was not justified and the finding returned thereon may be ignored. No doubt, he will have to show reasons for taking such a view.

The decks having thus been cleared for taking an independent view on the matter referred to by the learned Judge, while remitting the issue, we may now proceed to consider the submissions made by the learned counsel for the appellant in regard to the alleged illegality in the order passed. The submission of the learned counsel in this regard is that there was no pleading in suit No. 62 of 1986 by the respondent, Ranjit Singh, to the effect that he or Aizaz Ali had no knowledge of the death of Abdul Bari before 2851984 and, as such, there was no question of any finding based on Section 208 of the Contract Act, as given by the first appellate Court or for framing an issue in this regard as was done by order dated 1341992. There would appear to be force in this submission. Order XIV Rule 1 C. P. C. provides that "issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other." Subrule (2) of this Rule explains that "Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence." Rule 3 of order XIV mentions the materials from which issues may be framed. This Rule 3 reads as follows:

"3. The Court may frame the issues from all or any of the following materials:

(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties;

(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;

(c) the contents of documents produced by either party."

Therefore, issues could arise only where some material proposition of fact or law is affirmed by one party and denied by the other. This affirmation has to be done either in the statement recorded by the Court under Order XIV Rule 2 or in the pleadings, which means the plaint or written statement and the contents of the documents. No issue can be framed if these conditions are not satisfied. In the present case, the respondent, Ranjit Singh, did not at all allege in the plaint of his suit No. 62 of 1986 that he or Aizaz Ali had no knowledge of the death of Abdul Bari on or before 2851984 and, accordingly, he was entitled to the benefit of Section 208 of the Contract Act. He did not do so inspite of the specific allegations made by the appellant, Ahmad Bari, in the written statement in the suit No. 62 of 1986 filed by the respondent Ranjit Singh. He did not care to amend his plaint even after the appellants took the specific plea in the written statement that Abdul Bari died on 1631983 and, as such, Aizaz Ali had no power to execute the agreement to sell on 2851984 and the trial Court held that Abdul Bari died on 1631983. The trial Court framed an issue, being issue No. 8, in regard to the question as to whether Abdul Bari died before 2851984 but, unfortunately, refrained from giving any finding as to the effect of death of Abdul Bari before this date even after finding that Abdul Bari died on 1631983. The trial Court should have taken into consideration the provisions of Section 201 of the Contract Act and recorded a finding as to the effect of death of Abdul Bari before this date Since there was no pleading in regard to the knowledge of Ranjit Singh or Aizaz Ali or in regard to the defence available under Section 208 of the Contract Act, there was obviously no reason for the learned trial Court for framing an issue on the point. The first appellate Court quite obviously fell in error of law when he gave a finding based on Section 208 of the Contract Act. No such plea should have been allowed to be raised without there being pleading in this regard. Therefore, his finding that Aizaz Ali had power to execute the agreement for sale in view of Section 208 of the Contract Act is clearly erroneous in law and cannot be sustained.

Since there was no factual averment in the pleadings in regard to the plea under Section 208 of the Contract Act, no issue in this regard could have been framed or remitted to the first appellate Court. It appears from a perusal of the order, dated 1341992, of the learned Judge who remitted the issue that it was not brought to his notice that there was no pleading in regard to this plea. The fact that this was not brought to his notice will also appear from the reference in this order to the observations of the first appellate Court, extracted by the learned Judge. These observations related to the absence of knowledge of Aizaz Ali regarding date of death of Abdul Bari. If it had been brought to the notice of the learned Judge, who passed the order for remitting the issue, that there was no pleading in this regard and the observations made by the first appellate Court were made without there being any basis in the pleadings of the respondent, Ranjit Singh, there is no doubt that he would have not framed the issue and remitted it.

It was contended by the learned counsel for the respondent, Ranjit Singh, that the plea regarding Section 208 of the Contract Act is a legal plea and can be raised at any stage. I am afraid, this is merely a half truth. The plea contained in Section 208 relates to a combined question of fact and law and not merely of law. Before the legal protection envisaged in Section 208 of the Contract Act could be availed, it has to be shown, as a matter of fact, that the concerned agent or third person did not have any knowledge of the revocation of the Power of Attorney. The fact as to absence of knowledge was a matter within special knowledge of such a person within the meaning of Section 106 of the Indian Evidence Act. This obviously is a question of fact and had to be specifically pleaded. It is only when this factual assertion is made in the pleadings, the question of law as to the effect of this absence of knowledge could arise. Since the factual premises is absent, the legal inference sought to be drawn is unwarranted.

It was sought to be contended by the learned counsel for the respondent that there is now evidence and finding to the effect that Aizaz Ali and Ranjit Singh had no knowledge of the death of Abdul Bari before 2851984. The submission would appear to be that this Court may now consider this evidence and finding irrespective of the factual and legal position noted above. It is not possible to accept this submission. Apart from the legal position regarding the illegality in framing of issue in absence of specific pleading, this contention has to be rejected on well settled principle of law that no evidence can be looked into in absence of relevant pleading in that regard.

In M/s Trojan & Co. v. R. M. N. N. Nagappa Chettiar AIR 1953 Sup. Court 235, Hon''ble Supreme Court has observed as follows :

"It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case. The allegations on which the plaintiff claimed relief in respect of these shares are clear and emphatic. There was no suggestion made in the plaint or even when its amendment was sought at one stage that the plaintiff in the alternative was entitled to this amount on the ground of failure of consideration. That being so, we see no valid grounds for entertaining the plaintiff''s claim as based on failure of consideration on the case pleaded by him. In disagreement with the Courts below we hold that the plaintiff was wrongly granted a decree for the sum of Rs. 6,762.80 in respect of the Associated Cement shares in this suit. Accounts settled could only be reopened on proper allegations."

In Gappulal v. Thakurji Shriji Dwarkadheeshji and another AIR 1969 SC 1291, the tenant denied that he has sublet premises but there was no pleading or issue that permission to sublet was taken. Hon''ble Supreme Court held that the Court has no jurisdiction to decide whether permission was granted and observed as follows :

"In the absence of any pleading and any issue on this question the High Court was in error in recording the finding that the two shops were sublet towards the end of 1947 after the Jaipur Rent Control Order 1947 came into force."

In Govind Ram v. Parshotam Narain 1954 ALJ 580, this Court specifically considered the necessity of .relevant pleadings in regard to the plea under Section 208 of the Contract Act and observed as follows :

"There is no reference to Section 208 of the Indian Contract Act in the judgments of the courts below or anywhere in the pleadings. I am, therefore, not inclined to entertain this new case at this stage."

This Court has further observed as follows :

"Further, in order to attract the provisions of Section 208, Contract Act, it was necessary for the defendant to prove that he was unaware of the termination of the authority of the agent in this regard. He has not stated in his own evidence that he was unaware of it nor has he adduced any evidence in support of it. Under Section 106 of the Evidence Act. "when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him."

In Chander Kali Bail and others v. Jagdish Singh Thakur and another MR 1977 SC 2262, Hon''ble Supreme Court has observed as follows :

"In Siddik Mohomed Shah V. Mt. Saran, AIR 1930 PC 57 (1) it has been pointed out that where a claim has never been made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward. If it could be so even at the trial stage, undoubtedly, such a new question of fact could not be entertained at any appellate stage. This decision has been followed by this Court in Bhagat Singh v. Jaswant Singh, AIR 1966 SC 1861. To the same effect is the view expressed in another decision of this Court in Bachan Singh v. Dhian Das, AIR 1974 SC 708. Hegde, J. pointed out in paragraph 6 of the judgment that a contention involving determination of questions of fact ought not have allowed to be raised for the first time in the second appeal in the High Court."

In Siddik Mahomed Shah v. Mt. Saran and others AIR 1930 Privy Council 57 (1), the Privy Council has held as follows :

"The spiritual adviser, who is the appellant wishes to keep them first upon the ground already specified which their Lordships have already disposed of and, secondly upon the ground that it was a gift made by the widow herself but that claim was never made in the defence presented and the learned Judicial Commissioners therefore, very truly find that no amount of evidence can be looked into upon a plea which was never put forward."

Even if it were possible to consider the evidence or the finding returned by the first appellate Court in regard to the knowledge of Ranjit Singh or Aizaz Ali as to the date of death of Abdul Bari, I have no hesitation in accepting the submission of the learned counsel for the appellant that finding returned is grossly perverse and that perversity is of magnitude which raises a substantial question of law. Absence of knowledge of the date of death of Abdul Bari before the execution of agreement to sell was a matter within the personal knowledge of the respondent, Ranjit Singh, within the meaning of Section 106 of the Indian Evidence Act and, accordingly, the ''''burden of proving that fact" was "upon him". However, the first appellate Court wrongly placed entire burden on the appellant and thereby committed substantial error of law. The first appellate Court committed further substantial error of law when it ignored the material evidence of the appellant and made a patently incorrect statement that the appellant has not examined Asif Ali son of Aizaz Ali. The fact is that Asif Ali had already been examined by the appellant as D. W. 2 before the remittance of the issue. The first appellate Court has also ignored the statement of another witness of the appellant, D. W. 3 Gurmail Singh. In regard to the case of respondent, Ranjit Singh also, the first appellate Court has misread his pleading and made grossly erroneous statement of fact when it observed that "he mentioned in Para No. 9 that he acquired the knowledge about the death of Abdul Bari on 28586." No such averment exists in para 9 or in any other paragraph of the plaint. All that has been said by Ranjit Singh in para 9 is that he came to know on 2551986 that the name of defendant No. 1 (appellant) has been recorded in the revenue records in place of his father. As is obvious from the decisions, already noted above, these facts give rise to substantial question of law. Accordingly the appellant is legally entitled to assail this finding in second appeal.

The result of misreading of the pleading of respondent and ignoring the material evidence of the appellant is that the first appellate Court has completely misdirected itself and has made gross misassessment of evidence. He failed to notice that in his statement as D. W. 2, recorded before the remittence of the issue, Asif Ali had clearly stated that Abdul Bari had died on 1631983 and that he had attended his cremation on 1731983. He also failed to notice that D. W. 3 Gurmail Singh had also stated that he had gone to the house of Abdul Bari twenty days after 1631983 and that he had earlier visited the house of Aizaz Ali where he had come to know about the death There is nothing in the crossexamination of these witnesses which could discredit their testimony. Asif Ali is the son of Aizaz Ali, the erstwhile attorney of Abdul Bari, and his statement must carry much weight, Ahmad Bari has also stated that Aizaz Ali had attended the cremation. Besides being attorney, Aizaz Ali was very close relative of Abdul Bari, being real brotherinlaw. As such, it was natural that he and his son, Asif Ali would have attended the cremation, it is also difficult to believe that Aizaz Ali, who was attorney of Abdul Bari and was managing his entire estate, would not come to know of his death immediately.

On the other hand, the statement of Ranjit Singh does not inspire confidence and cannot be relied upon as against convincing and reliable evidence of the appellant. In this connection, it is important to note that, during the pendency of the suit in the trial Court, Ranjit Singh placed on record a patently incorrect death certificate, prepared and issued in a most dubious manner, showing the date of death of Abdul Bari as 2871984. A forged application, purporting to be in the name of Ahmad Bari, was moved before Municipal authorities for recording the date of death of Abdul Bari as 2871984. On this application, a death certificate was prepared and issued on 5.12.1987 indicating the date of death of Abdul Bari as 2871984. Ahmad Bari had already placed on record the death certificate issued by the municipal authorities indicating the date of death to be 1631983 before the date of the said application and had specifically pleaded that Aizaz Ali had no authority to execute an agreement to sell. Accordingly, it is quite obvious that the application could not have been moved by Ahmad Bari and that it was moved to defeat the claim of Ahmad Bari. Ahmad Bari moved an application before Nagar Swasthya AdhikaricumRegistrar, Birth & Death Registration for cancellation of certificate issued on 5121987. After enquiry, the Registrar cancelled the certificate. Thereafter, nothing would appear to have been done by the respondent, Ranjit Singh against the cancellation of death certificate. To say the least, this attempt by the respondent to obtain and place on record a patently incorrect death certificate, prepared and issued in such a dubious manner, could only indicate the knowledge of the respondent about the death of Abdul Bari before the date of the execution of agreement to sell. I refrain from saying anything more in regard to the production of this evidence

It must accordingly be held that Aizaz Ali and Ranjit Singh had knowledge of the date of death of Abdul Bari before execution of the agreement to sell. As such, the respondent Ranjit Singh is not entitled to the benefit of Section 208 of the Contract Act.

Learned counsel for the respondent then relied upon Section 3 of the Powers of Attorney Act and the decision in Mt. Radhabai versus Nargis and others AIR 1934 Nagpur 274 in support of his submission that the execution of agreement to sell must be held to be valid. This submission must be rejected without much ado. Suffice it to say that this provision merely indemnifies the agent in respect of the act done by him in ignorance of death but does not make the transaction valid. Interpreting this provision, Nagpur High Court has observed :

"This S3 however does no more than indemnify the holder of a powerofattorney for actions done by him in good faith if the determination of his power by the death of the person granting it was unknown to him at the time."

With respect, I fully subscribe to this view.

The learned counsel for the appellants further submitted that after the death of Abdul Bari, Aizaz Ali had no right to present the agreement to sell for registration and the Registrar had no authority to register According to Section 32 of the Registration Act (16 of 1908), a document for registration has to be presented by the person who executes the document or claims under the same or by the representative or assign of such person.

In Mujibunnisa and others v. Abdul Rahim and Abdul Aziz (1901) XXVIII Indian Appeals 15 : ILR 23 All. 233 (PC), the Privy Council has held :

"It is perfectly plain, not merely from the general law, but from the terms of this s. 32, itself, that after the man''s death the only attorney who would have any locus standi would have been the attorney of the representative or assign of the deceased. It has been suggested however, that the error of the registrar was a defect in his procedure only, and accordingly, under s. 87, does not invalidate the act of registration. To their Lordships the error appears to be of a more radical nature."

81 A. In Sekar Mudaliar and etc. v. Shajathi Bi and another AIR 1987 Madras 239, Madras High Court has held that presentation of a deed for registration by person who is not competent to do so would be substantial defect affecting jurisdiction of registering authority and would not operate to convey title in favour of the settlees. Accordingly, it must be held that Aizaz Ali was not competent to present and the Registrar had no authority to register this document and, as such, no right could be said to have been conveyed to the respondent, Ranjit Singh under the deed.

In view of the above finding to the effect that Aizaz Ali had no power to execute the agreement to sell, it is quite obvious that the suit of the respondent, Ranjit Singh for specific performance could not have been decreed and the decision of the lower Courts in this regard is quite illegal and cannot be sustained. Accordingly, the second appeal No. 376 of 1991 arising out of the first appeal No. 50 of 1991 will have to be allowed and the suit No. 62 of 1986 will have to be dismissed in so far as it relates to the specific performance of agreement to sell.

In suit No. 62 of 1986, the plaintiffrespondent Ranjit Singh has also claimed, in the alternative, a decree for return of Rs. 29,000/ in case his prayer for specific performance of agreement to sell is not allowed. The trial Court has found and it cannot now be disputed in second appeal that a sum of Rs. 29,000/ was paid by the respondent, Ranjit Singh, to Aizaz Ali. It is stated by Ranjit Singh in his statement before the trial Court that this amount was paid to Aizaz Ali three day''s after the talks in regard to this transaction. It is further stated by him that these talks were held 15 days'' before the date of execution of the agreement to sell. It is evident from this statement that this amount was paid to Aizaz Ali after the death of Abdul Bari and at a time when he was no more authorised to exercise the power of attorney. There is no evidence that this amount, which was obviously received by Aizaz Ali without any authority and not on behalf of the present appellant, was paid to the appellant. Since the relief for specific performance of the agreement cannot be allowed, the alternative relief will have to be given. Accordingly, the suit for recovery of Rs. 29,000/ will have to be decreed against the defendant respondent Syed Asif Ali who is the son of Aizaz Ali. The decree will, however be against the assets of Aizaz Ali in the hands of Asif Ali.

So far as the appeal against the judgment and decree of the first appellate Court in Civil Appeal No. 49 of 1991 is concerned, this relates to the suit No. 158 of 1987 filed by the appellant for permanent injunction, against the respondent praying that he be restrained from interfering with his possession over the land in dispute, that is, the land regarding which specific performance of agreement was sought in suit No. 62 of 1986. Learned counsel for the respondent, Ranjit Singh, raised a preliminary objection that the finding of the first appellateCourt is a finding of fact and cannot be disturbed in second appeal. It was further contended by him that the finding of the first appellate Court cannot be said to be perverse and the plea raised does not involve substantial question of law. Reliance has been placed by him on Deity Pattabhiramaswamy v. S. Hanymayya and others AIR 1959 SC 57, Mangal Singh and others v. Smt. Rattno (dead) by her legal Representative and another AIR 1967 SC 1786, State of U. P. v. Ram Chandra Trivedi AIR 1976 SC 2547, Jangbir v. Mahavir Prasad Gupta AIR 1977 SC 27, Bhola Ram v. Ammerchand AIR 1981 SC 1209, Bruce v. Silva Raj and others 1987 (supp.) SCC 161, M/s. Ramesh Chandra Jamnadas & Co. v. State of Andhra Pradesh 1987 (supp) SCC 166, Sumesar and others v. Smt. Mangla 1993 LCD 533 and Ramaswami Kalingarya v. Mathayan Padayachi AIR 1992 SC 115.

On the other hand, learned counsel for the appellant submitted that the trial Court had considered both documentary and oral evidence and came to the right conclusion that the appellant was in possession. However, the first appellate Court illegally ignored the documentary evidence, the entry in Khasra and absence of averment in the agreement to sell regarding delivery of possession and wrongly disturbed the finding of the trial Court on mere assumptions, erroneous view in regard to burden of proof and gross misassessment of evidence. Learned counsel, on this premises, contended that the finding of the first appellate Court regarding possession is vitiated in law and is perverse and that being so, this could be challenged in the second appeal. Reliance has been placed by him on Radha Nath Seal (dead) by his legal representatives v. Haripada Jana and others AIR 1971 SC 1049, Sita Ram and others v. Smt Draupadi Devi and others AIR 1984 Patna 35, Asghar Ali and others v. Chidda AIR 1982 Allahabad 186, M/s. New Durgabari Tea Co. Ltd. v. Smt. Rani Surabala Devi and others AIR 1970 Tripura 76 and Lila Ram v. Mohar Chand and others AIR 1968 Punjab 60.

Learned counsel for the parties were permitted to make their submissions both on the question of admissibility of this plea in second appeal and also on the merits of the plea and them made their submissions at length.

I have carefully considered the submission made by the learned counsel for the parties in the light of law laid down by Hon''ble Supreme Court and various High Courts and the facts on record and, in my opinion, there is much force in the submission of the learned counsel for the appellant.

In Radha Nath Seal (Dead) by his legal representatives v. Haripada Jana and others, AIR 1971 SC 1049, Hon''ble Supreme Court has held that the High Court could interfere in second appeal if certain material evidence in the shape of documents was not considered by the first appellate Court. Hon''ble Supreme Court has observed as follows :

''The High Court has pointed out that certain material evidence in the shape of documents was not considered by the first appellate Court and a good deal of assumptions of fact were made. Apart from that on proved and admitted facts it was open to the High Court to find what the nature of the tenancy was."

In Shikharchand Jain v. Digambar Jain Prabhandh Karini Sabha and others AIR 1974 SC 1178, the High Court reversed the finding of the first appellate Court in second appeal on the ground that it overlooked the statutory presumption of possession on the basis of the revenue records and held that the finding of the first appellate Court suffers from substantial error. Hon''ble Supreme Court held :

"The Khasra entries from 193738 to 194142 and 194344 to 195152 are all in favour of Smt. Rajrani. They show that she was in possession over the land during those years. Khasra is a record of right according to Section 45 (2) of the Central Provinces Land Revenue Act, 1917. Section 80 (3) of that Act provides that entries in a record of rights shall be presumed to be correct unless the contrary is shown. This provision raises a presumption of correctness of the aforesaid khasra entries. The burden of proving adverse possession accordingly was a heavy one."

Hon''ble Supreme Court further held :

"We are of opinion that the first appellate court was wholly wrong in discarding the Khasra entries on the solitary statement in para 2 of her plaint. The High Court could, therefore, interfere with its finding under Section 100 (1) (c)."

In Hira Lal and another v. Gajjan and others (1990) 3 SCC 285 also Hon''ble Supreme Court considered the question of Khasra entries and the revenue receipts in regard to possession and observed as follows :

In this case the Khasra entry for 1356 Fasli Ex. 4 showed that the respondent''s father Munni Lal was subtenant. As rightly stated by the High Court, it is not for the plaintiff to prove that this entry is correct. It was for the defendants to show that the entry had been Introduced surreptitiously out of illwill or hostility. In the absence of such proof, the genuineness has to be presumed and the entry accepted as evidence of the subtenancy in favour of the respondent''s father. The Khasra entry of 1371 Fasli and 1372 Fasli show the respondent''s name as person in possesssion. It is clear indication that possession of the subtenant continued with the respondent. The rent receipts of the year 1929 and subsequent years are not required to be proved by the respondent as pointed out by the learned Judge. These furnish evidence of possession as subtenant. We agree that the lower appellate court was not justified in ignoring these documents. The High Court was, therefore; well within its powers in appreciating the evidence and arriving at its own conclusion."

In J. B. Sharma v. State of Madhya Pradesh and another AIR 1988 SC 703, the appellant was appointed temporarily as an Assistant Jailor in the State of Madhya Pradesh and his services were terminated without assigning any reason. The suit was dismissed by the trial Court holding that the termination order was simpliciter and was not as a measure of punishment. The appellate Court, however, decreed the suit. It based its decision on a circular issued by the authorities about a month after the termination order. The appellate Court accepted plaintiff''s case observing that by the issuance of the said circular the plaintiff was visited by a stigma and the termination order read along with the Circular, be treated to be penal in nature. In second appeal, the High Court, while reversing the finding pointed out that the circular did not specifically name the plaintiff and was not issued simultaneously with the termination order. It was contended before Hon''ble Supreme Court that the High Court was not right in interfering with the finding of fact recorded by the first appellate Court. Hon''ble Supreme Court rejected this contention and observed :

"It will thus be seen that the first appellate Court while recording the finding acted on an assumption not supported by any evidence and further failed to consider the entire document on the basis of which the finding was recorded. The High Court was, therefore, justified under s. 100 of the Code of Civil Procedure to set aside the finding."

In Sita Ram and others v. smt. Draupadi Devi and others AIR 1984 Patna 35, Patna High Court has observed :

"In law, this court in second appeal may interfere into such finding if it is perverse or the first court appeal did not consider all material evidence or the conclusion was arrived by applying incorrect view of law."

Patna High Court further observed as follows :

"It is true that the lower appellate court was the final court of fact and it was required to notice the evidence of all material witnesses in order to come to finding regarding possession. But whether, in fact and circumstances of the case, it can be said that non consideration of the evidence of those witnesses vitiates the finding of the court below. From the judgment of the court below, it appears that on the basis of facts emerging from a number of documentary evidence, the court below has found that the transferees were in possession at all relevent time...................But where the finding of possession is based on documentary evidence, certainly more reliable, oral evidence of the witnesses cannot falsify the documentary evidence."

In Asghar All and others v. Chidda AIR 1982 Allahabad 186, this Court has held that where the assessment of evidence by first appellate Court is found vitiated in law, the High Court is not bound to accept such assessment in second appeal.

In M/s. New Durgabari Tea Co. Ltd. v. Smt Rani Surabala Devi and others, AIR 1970 Tripura 76, Tripura High Court has held that the question whether there is any evidence to support a finding of fact is a question of law and such a question can be taken up in second appeal.

In v. Rama chandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302, Hon''ble Supreme Court had held that, if in dealing with a question of fact, the lower appellate court has placed the onus on a wrong party and its finding of fact is the result, substantially, of this wrong approach the finding of lower court excludes from consideration some evidence on the ground that the same was inadmissible, and if the High Court is satisfied that the evidence was admissible, the finding is liable to be quashed In second appeal. This decision of the Hon''ble Supreme Court has been referred to and relied upon by the Punjab High Court in Li/a Ram v. Mohar Chand and others AIR 1968 Punjab 60. Besides the above noted decisions, it may be recalled that in Dilbagrai Punjabi''s case (Supra) also, Honble Supreme Court has held that if first appellate court refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding in second appeal.

Thus the legal position is that the finding of fact recorded by the first appellate Court could be interfered with in second appeal if it has been arrived at without considering the important documentary or oral evidence. It could also be interfered with if the finding is the result of assumptions not supported by evidence. Further, in considering the question of possession, the Khasra entries are entitled to much weight and there is a presumption of correctness in regard to the revenue records. It is necessary for the party which disputes these entries to prove that these entries have been introduced surreptitiously to show positively that they are incorrect. In absence of such proof, the genuineness of such entries has to be presumed and that party should be held in possession whose name is recorded in such a document. Once a party produces relevant copy of the Khasra indicating his possession, the burden will be that of the other party to show that this entry is incorrect and that he is in possession. If the first appellate court wrongly places burden of proof then also it will be a question of law which can be agitated in second appeal. The question whether evidence to support a finding of fact exist is also a question of law and the correctness of such finding can be challenged in second appeal.

Nothing to the contrary would appear to have been laid down in the decisions relied upon by Shri K. B. Sinha, learned counsel for the respondent noted above. None of these cases related to a circumstance where the lower Courts did not consider or ignored the documentary evidence without any sufficient reasons. In none of these cases, the first appellate Court laid wrong burden of proof or ignored the correctness of the presumption of revenue entries Further, in none of these cases, the finding of the first appellate Court was based on assumptions not based on any evidence. All that has been laid down in the cases referred to by the learned counsel, is that the finding of fact recorded by the lower Courts cannot be disturbed in second appeal even though such a finding may be grossly erroneous. That would not mean that if the finding has been arrived at on mere assumptions by laying wrong burden of proof or discarding the presumption of the correctness of the revenue entries or by not considering the documents, that finding of fact cannot be agitated in second appeal. The two decisions, relied upon by the learned counsel for the respondent, which seem to come closest to the facts of the present case are Jangbir v. Mahavir Prasad Gupta AIR 1977 SC 27 and Bhola Ram v. Ameer Chand AIR 1981 SC 1209. But these too do not lay down anything contrary to the decisions relied upon by the learned counsel for appellant. In Jangbir''s case, Hon''ble Supreme Court has held that the question as to whether a particular Khasra number containing the house in question was included within a Mauza to the whole of which the provisions of the Delhi Municipal Corporation Act had been extended is a question of fact which cannot be interfered with in second appeal. In Bhola Ram''s case, the matter related to the erroneous interpretation of a rent note and overlooking certain admissions of the plaintiff. It was held that the High Court could not interfere in second appeal. The facts in the present case are distinguishable as would be noted hereinafter and, as such, these decisions will be of no help to the respondent.

In the present case, as noted above, learned counsel for the appellant is right in his submission that the learned first appellate Court has disturbed the finding of the trial Court regarding possession of the appellant on unwarranted assumption ignoring the documents placed on record by the appellant. It will be worthwhile to reproduce the observations of the learned first appellate Court with which he has disturbed the finding of fact recorded by the trial Court. Learned first appellate Court has observed :

"In this regard, I may point out that the contention of Ranjit Singh is, that he was handed over possession of the property at the time of agreement of sale by the agent of principal Aizaz Ali. He paid Rs. 29,000/ as earnest money out of total stipulated consideration of sale Rs. 30,000/. In these circumstances, it cannot be disbelieved that when almost the entire consideration for sale or a very major of consideration is being paid by the purchaser to the seller, the seller may hand over possession of the property, as token of collateral security, or in other words in part performance of the contract. So far as the case of plaintiff Ahmad Bari in his suit for injunction is concerned, he has to stand on his own foot and prove his possession over the property. Ahmad Bari as D. W. 1 could not say about the location of the land, its boundaries, its limits, its area. He himself appointed Aizaz Ali''s son his attorney to manage his property in Lakhimpur. Ahmad Bari''s (plaintiff''s) not knowing anything about the land, its crop etc. clearly denotes that he is not in the management of the property. He has his no physical possession and power over the land. Let him be recorded in revenue records, but he does not know anything about the land, then how he is in possession, I am unable to envisage. The specific contention of Ranjit Singh, that he is in possession of the land from the the time of agreement of sale and purchase in his favour. He gives the details of land, the crops standing over it When one major part of the testimony of D. W. 1 Ahmad Bari is totally disbelievable on account of his failure of proving his case and on account of his suppressing material evidence in his possession and custody from being produced before the Court, in the circumstances of the case when he could not establish the identity of the land itself it will follow that Ahmad Bari is not at all and was not at all in possession of the property in suit on the date of suit itself."

It does appear that learned first appellate Court disturbed the finding of the trial Court regarding possession on a wholly unwarranted assumption that, if the major portion of consideration was paid to Aizaz Ali, the possession must have been delivered. There is no basis for this assumption. The agreement to sell admittedly does not contain any such averment. Whenever possession of open land is intended to be or is delivered, as a result of an agreement to sell or sale deed, it is usual to mention this fact in the document. Respondent, Ranjit Singh would appear to be fully aware of the importance of such an averment when he stated In crossexamination that he had asked Aizaz Ali to mention this fact in the agreement to sell but he declined to do so saying that, when possession has been delivered, it is unnecessary to do so. It is not possible to accept this explanation. If possession was really delivered, the normal and natural conduct of Aizaz Ali would have been to mention this fact in the agreement to sell rather than decline to do so even after being allegedly asked to mention it.

Apart from the averment in the concerned document, the delivery of possession could also be evidenced, in respect of agricultural land, from the entries in the revenue records. The appellant has placed on record Khasra of 1394 Fasli which mentions the possession of the appellant. Name of the respondent, Ranjit Singh does not find place in this Khasra.

There is a presumption of correctness of entries in the revenue records. The entries therein have to be accepted as correct, unless contrary is proved (see Shekhar Chand Jains'' case (supra) AIR 1974SC 478). This presumption cannot be displaced unless it is shown that the "entry had been introduced, surreptitiously out of ill will or hostility" (see Hira Lal Guffar (1990) 3 SCC 285supra). Consequently, a heavy burden lay upon the respondent, Ranjit Singh to disprove the correctness of this entry. He has failed to do so. He has not been able to show that the Khasra entry was made surreptitiously out of ill will or hostility. He has not produced copy of any other revenue record wherein his name may have been recorded. There is also no other reliable documentary evidence in support of his claim of possession. The oral evidence led by him is quite insufficient to displace the presumption. Accordingly, it is difficult to appreciate the observation of the learned first appellate Court"let him be recorded in the revenue records but he does not know anything about land, then how he is in possession, I am unable to envisage."

The learned first appellate Court has sought to ignore the documentary evidence with the observation that the appellant, Ahmad Bari could not give the particulars of the land. Admittedly, the management of this land was not being done by either Abdul Bari or Ahmad Bari. This was being managed by Aizaz Ali and is now being managed by the attorneys of Ahmad Bari. In this background, failure of Ahmad Bari to give particulars of land could not be considered to be of any material consequence. It may be that Ranjit Singh was able to give particulars of this land but that may have been because he had some other property in the vicinity and secondly because he was claiming specific performance in respect of that land. The agreement to sell was also executed by Aizaz Ali and not by Abdul Bari or Ahmad Bari. In these circumstances, failure of Ahmad Bari to give the particulars or of the respondent, Ranjit Singh to give the particulars could not have been sufficient to disprove or discard the entry in the revenue records or explain absence of averment in the deed. Consequently, the appellate Court committed substantial error of law in discarding the documentary evidence merely because Ahmad Bari could not give the particulars while Ranjit Singh could do so.

The learned first appellate Court was also in error in placing the entire burden on the appellant. When he had placed on record the documentary evidence in the form of copy of the Khasra of 1394 Fasli for which there is a presumption in law, it was the burden of the respondent, Ranjit Singh, to produce positive evidence to disprove or displace the presumption of law. He has failed to do so. Accordingly, as has been laid down in the decisions noted above, the first appellate Court must be held to have committed substantial error of law in this regard.

It clearly follows that learned first appellate Court has based its finding on assumption. He has not considered the effect of documentary evidence in accordance with law and has ignored that evidence without sufficient reason. He has also placed wrong burden of proof. As such, the finding of fact arrived at by him is clearly vitiated in law. It is evident from the decisions of Hon''ble Supreme Court and various High Courts, referred to above that these facts and circumstances clearly raise a substantial question of law. Accordingly, it must be held that, in regard to finding relating to possession, substantial question of law arises. As such, the plea in regard to this finding could be validly raised and legally considered in second appeal.

It would appear from the copy of the Khasra and the absence of averment in the agreement to sell regarding delivery of possession that the appellant was in possession over the land in question. As already noted, in the Khasra of 1394 Fasli the appellant is mentioned to be in possession. The agreement to sell does not mention delivery of possession to the respondent which should normally have been done had the possession been delivered. The failure of the appellant to give particulars of the land cannot be considered to be sufficient to displace inference of possession on the basis of documents for the reasons already stated. The learned trial Court had considered these documents and the evidence of the parties and came to the conclusion that the possession was with the appellant. He has also referred to the Commissioner''s report and observed that it also indicates that the appellant was in possession. He has further noted that in the agreement to sell, it has not been mentioned that the possession has been delivered and that no oral evidence could be relied upon against the document. It is evident that the finding of the learned trial Court was based on correct assessment of evidence and exposition of law and the first appellate Court was not right in disturbing that finding.

106 In this connection, it may also be noted that this case had earlier come to this Court by way of first appeal but consequent to the enhancement of the jurisdiction of the first appellate Court, the case was sent back to the first appellate Court. When this case was pending before this Court in first appeal, the appellant had prayed for appropriate orders for safeguarding his possession and Hon''ble K. C. Agarwal, J, as he then was, passed the following order on 1841989 :

"Heard counsel for the parties.

In the interest of justice, it appears to me to be necessary to modify the order dated 16111988. In place of the aforesaid order, I direct that Ahmad Bari (respondent of first civil appeal No. 156 of 1988) will remain in possession of the land on the condition of depositing Rs. 15,000/ per annum In two instalments. The first instalment of Rs. 7,500/will be deposited on or before 31st July'' 89 and the second instalment will be deposited by 22nd May'' 90. The amount, so deposited shall remain lying in the Court, which would be invested in the fixed deposit scheme in any Nationalised Bank. Whichever party ultimately succeeds, will get the said amount plus interest. In the event of non compliance of the terms of the aforesaid conditions, the stay order shall automatically stand vacated.

This order will be read in first appeal No. 161 of 1988 as well.

Sd/

K. C. Agarwal

1841989

The respondent Ranjit Singh went In appeal before Hon''ble Supreme Court, being civil appeal No. 73330 of 1989 by way of Special Leave Petition. Hon''ble Supreme Court dismissed this Special leave Petition vide order dated 0661989. These orders also support the case of the appellant that he was in possession.

It must accordingly be held that the appellant was in possession over this land and the finding of the learned first appellate Court is wholly perverse and bad in law and on facts. Accordingly, the judgment and decree of the first appellate Court in first appeal No. 49 of 1991, arising from suit No. 158 of 1987, will have to be set aside and the judgment of the trial Court decreeing the suit for permanent injunction will have to be restored subject to the only modification that the condition that this permanent injunction shall continue till the execution of the sale deed only will not be part of the order.

For the reasons given above, both the appeals, namely second appeal No. 375 of 1991 and 376 of 1991, are liable to be and are hereby allowed. The judgment and decree passed in the Civil Appeal No. 50 of 1991 Ahmad Bari and another v, Ranjit Singh and another, arising from suit

No. 62 of 1986, Ranjit Singh v. Ahmad Bari, is set aside and the suit No. 62 of 1986 is dismissed in so far as it relates to specific performance of agreement to sell. The suit shall, however, stand decreed against defendant respondent Syed Asif Ali for the recovery of Rs. 29,000/ (Rs. Twentynine thousand), along with simple interest at the rate of 10% per annum. This amount shall be recoverable only from the assets of Aizaz Ali in the hands of Asif Ali.

The judgment and decree passed in Civil Appeal No. 49 of 1991, Ranjit Singh v. Ahmad Bari, arising out of suit No. 158 of 1987 Ahmad Bari v. Ranjit Singh, is also set aside. The suit for permanent injunction shall stand decreed and respondent Ranjit Singh shall be permanently restrained from interfering with the possession of the plaintiffappellant, Ahmad Bari, on the land in suit.

The appellant shall be entitled to take back the money deposited in pursuance of the order of this Court dated 1841989.

In the circumstances of the case, the parties shall bear their own costs.

(Appeals allowed)