Validity of the sale-deed, authority of power of attorney holders, compliance with registration requirements.

JUDGMENT :

This is an appeal by the defendant being aggrieved and dissatisfied by the concurrent findings and decisions of the Courts below holding the respondents/plaintiffs entitled to possession of the suit property based on title.

2. For the sake of convenience the parties will be referred according to their status before the trial court.

3. The sum and substance of the pleadings are to the effect that one Rampyaribai was the owner of the suit property which was described as property bearing C.T.S. No. 4670 corresponding to Municipal House No. 3-5-8 of Aurangabad, except the two shops from the ground floor which have been in possession of the defendants as tenants. According to plaintiffs, Rampyaribai had executed a power of attorney in favour of one Subhash and Ajay from whom they purchased it under a sale-deed. They averred that pursuant to the sale-deed they were put in possession of the suit property. However, the defendants clandestinely entered into possession.

Hence they prayed for possession of the suit property based on title.

4. The defendants resisted the suit in toto. They admitted that Rampyaribai was owner of the suit property. They also admitted that they were in possession of couple of shops from the ground floor. They further contended that they were also in possession of one more room from the upper floor. They denied that the respondents purchased the suit property from Rampyaribai through her power of attorneys. They contended that in fact the power of attorneys Subhash and Ajay had agreed to sell the suit property to them and even received some part of the consideration and they were put in possession. When they came to know about the misdeeds of the plaintiffs one of them approached Rampyaribai who was residing in Madhya Pradesh, who assured them to sell the suit property to them and disclosed that she was not agreeable to the sale effected by her power of attorneys and would do the needful. Thus, according to them they were put in possession of the suit property in part performance of the agreement and were entitled to protect the possession.

5. The learned advocate for the defendant No. 2 vehemently submitted that the respondents had miserably failed to prove the sale-deed. Rampyaribai was already dead before execution of the sale-deed. An attempt was made by the defendants to prove this fact by moving an application under Order XLI Rule 27 of the Code of Civil Procedure before the lower appellate court. Unfortunately, that request was turned down. For this reason alone, the power of attorney had ceased to exist and mere execution of sale-deed would not transfer the title. The learned advocate would further submit that the power of attorney was not a registered power of attorney and still the attorneys had presented the sale-deed for registration which was contrary to the provisions of Section 32 and 33 of the Registration Act. In support of his submission the learned advocate Mr. Ingale placed reliance on the decision of this Court in the matter of Ashok Kumar s/o Dulichand Sharma Vs. Jethmal Motilal Jedia and others; 2009(6) Mh.L.J. 629.

6. Per contra, the learned advocate Mr. Patni for the plaintiffs submitted that no substantial question of law arose in this second appeal. There are concurrent findings of facts by the courts below and even an erroneous finding would not give rise to a substantial question. He would further submit that both the courts below have carefully scrutinized the evidence and have demonstrated as to how the plea of the defendants regarding existence of an agreement of sale was not sustainable under Section 53A of the Transfer of Property Act. Though the defendants are disputing the power in Subhash and Ajay to execute the sale-deed, even according to their own case and the testimony of their witness, they had approached the very same individuals and it is not their case that they had directly approached Rampyaribai before power of attorneys executed sale-deed on her behalf.

7. Mr