JUDGMENT :

Biswajit Basu, J.

1. The instant second appeal is at the instance of the plaintiff in a suit for partition and declaration of title and is directed against the appellate decree dated August 31, 2010 passed by the learned Additional District Judge, Fast Track-3rd Court, Paschim Medinipur in Title Appeal No. 30 of 2009 thereby reversing the judgment and decree dated March 17, 2009 and March 26, 2009 respectively passed by the 1st Court of Learned Civil Judge(Junior Division), Paschim Medinipur in Title Suit No. 128 of 2003.

2. The summary the plaint case of the connected suit is that the defendant no. 2 is the elder brother of the plaintiff and by a registered deed of conveyance dated April 02, 1986, they jointly purchased 2 decimals of land in suit plot no. 170 under Mouza-Lutunia, District – Paschim Medinipur, (the ‘suit property’ in short) from one Basudev Patra, who filed a suit against both the brothers. The plaintiff on February 03, 1989, executed a registered power of attorney (POA in short) thereby authorised his said elder brother to represent him in the said suit during his absence from the village. The plaintiff, noticing some adverse action of his elder brother, revoked the said POA on June 27, 1990 by a registered deed of cancellation. The plaintiff on May 15, 2003 found that the defendants are carrying on construction over the suit property. The defendant no. 2, on enquiry disclosed that being authorised by the said POA, he, on behalf of the plaintiff, by a registered deed of conveyance dated June 23, 1990 has sold the plaintiff’s share in the suit property(hereinafter referred to as the ‘said share’) to his mother-in-law Chhabi Rani Makar, she in turn sold it to one Gorachand Samanta on September 10, 1997 who, on January 21, 1998 sold it to the defendant no. 1, the minor son of the defendant no. 2. Under such circumstances, the plaintiff on May 30, 2003 requested his elder brother to execute appropriate deed of release in his favour in respect of the said share but he refused, hence the suit.

It is the specific case of the plaintiff that he executed the said POA only to take all necessary steps to defend his title in the suit filed by the said Basudev Patra, but he never authorised his elder brother to sell the said share.

3. The defendants filed a joint written statement to contest the suit. The case of the defendants in the said written statement is that the plaintiff by the said POA not only authorised the defendant no. 2 to defend the title of the plaintiff in the suit filed by the said Basudev Patra but also authorised the defendant no. 2 to sell the said share by executing and registering necessary deed of conveyance to meet the expenses of the said suit.

4. The learned Trial Judge scrutinised the clauses of the said POA(Exhibit-9) to ascertain whether the plaintiff, by the said POA empowered the defendant no. 2 to sell the said share and concluded that nowhere in the said exhibit, the plaintiff entrusted the defendant no. 2 for the specific purpose to sell the said share, consequently cancelled the deed of conveyance in favour of said Chabi Rani Makar(Exhibit-6) and also declared all subsequent deeds i.e. deed in favour of said Gorachand Samanta (Exhibit-8) and deed in favour of the defendant no. 1(Exhibit-3) null and void. The learned Trial Judge decreed the suit in preliminary form declaring half share of the plaintiff in the suit property.

5. The defendants being aggrieved by and dissatisfied with the aforesaid judgment and decree of the learned Trial Judge preferred the appeal. The appeal Court below by the impugned judgment and decree has reversed the judgment and decree of the learned Trial Judge and dismissed the suit. The Appeal Court found that the plaintiff in his cross-examination admitted that he obtained the certified copy of the deed of conveyance in favour of the said Chabi Rani Makar before sending the advocate’s notice dated November 16, 1994(Exhibit-2), as such the plaintiff must have