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IN THE HIGH COURT OF GAUHATI
N. CHAUDHURY, J.
SRI BINOY BHUSAN CHOUDHURY, HIS LEGAL HEIRS SMT. MIRA CHOUDHURY AND OTHERS — Appellant
Vs.
SMT. REKHA RANI DEB AND OTHERS — Respondent
Regular Second Appeal 98 of 2003
Decided on : 06-02-2014
Evidence Act – Section 85 – Mental Health Act, 1987 – Section 50 – Code of Civil Procedure, 1908 – Section 80, Order XXXII Rule 15, Order XLI Rule 27 – Declaration of right – Title – Interest – Permission of possession – Whether the learned lower Appellate Court was justified in dismissing the suit of the plaintiff (a person of unsound mind) filed by the next fried on the ground of omission to hold an enquiry in compliance of the provisions of Order XXXII Rule 15 of the CPC inasmuch as non-holding of any enquiry at the initial stage is only an irregularity merely touching the procedure and does not render the suit defective – Whether, the execution of the power of attorney not having been seen by anybody and as such not proved in accordance with law, the learned lower Appellate Court was justified in drawing presumptions u/s 85 of the Evidence Act and holding the same to be a valid document – Whether, in view of the clear finding of the learned trial Court that the plaintiff was not mentally fit since 1985 to execute any deed, the learned lower Appellate was justified in reversing that finding on hyper technical approach – Held, Once the provision of Order XXXII is viewed from such angle there is no doubt that this provision is not a merely procedural one but it has essential judicial components also – Apart from using the word shall in Order XXXII Rule 15, the judicial exercise of the Court required by the provision placed this rule at a higher pedestal then a procedural provision – This Rule, therefore, is mandatory and failure to comply with the same would make the plaint un-entertainable and consequently the suit would become not maintainable – Nabendu Bikash Deb is a self styled next friend of the plaintiff who did not even urge the Court to make a necessary adjudication as to the mental capability of the plaintiff before proceeding to entitlement of the suit and the Court also proceeded at the mere ipse dixit of Nabendu Bikash Deb who has no jural connection with the property – In that view of the matter the learned lower appellate Court has not committed any error in holding that the suit itself was defective and not maintainable for non-compliance of the provision of Order XXXII Rule 15 CPC – First substantial question of law is accordingly decided against the appellant and in favour of the respondents – There is no necessity for deciding the subsequent two issues – Appeal Dismissed
N. Chaudhury, J.
This second appeal is preferred against the lower appellate judgment and decree dated 14.02.2003 passed by the learned District Judge, Cachar at Silchar in Title Appeal No. 5 of 1998 whereby the trial Court's judgment and decree dated 18.05.1998 passed by the learned Civil Judge (Senior Division No. 2) Silchar in Title Suit No. 90/1988 was set aside and reversed thereby dismissing the suit of the plaintiffs. One Nabendu Bikash Deb claiming to be next friend of the plaintiff, Bidhan Bhusan Choudhury and describing said Bidhan Bhushan Choudhury as an insane filed Title Suit on his behalf praying for a decree for declaration of right, title and interest and permission of possession over a plot of land measuring 15 kathas 1 chatak 17 gondas under Dag Nos. 370 of second R.S. Patta No. 120 as well as Dag No. 369 of second R.S. Patta No. 199 of Mouja Ambicapur Part IX of Silchar Town and also for cancellation of a registered sale deed No. 3518 dated 18.09.1987 and a registered Power of Attorney No. 277 dated 26.07.1987. The case of the plaintiff was that plaintiff originally owned and possessed about 2 bighas 9 kathas 9 chataks and 8 gondas of land in the aforesaid 2 dags by way of purchase out of which he sold land to one Chhaya Chatterjee and one Sanjoy Chatterjee on various days. Thereafter he retained only the suit land measuring 15 kathas 1 chatak 17 gondas of land. According to the plaintiff, the defendant No. 2 is a resident of the opposite plot of the suit land and because of living in the neighbourhood became a friend of the plaintiff. Plaintiff became insane since 1985 and taking this opportunity defendant No. 2 initially got a registered Power of Attorney executed by him on 26.07.1987 and subsequently on the basis of the said Power of Attorney got the suit land sold in favour of his wife, the defendant No. 1 herein. According to the plaintiff, permission of Silchar Development Authority was fraudulently obtained for such sale and there was no permission from the Collector. The plaintiff did not receive any money against aforesaid sale in favour of the defendant No. 1 and never parted with the possession of the land. The plaintiff claimed to be alone in possession of the suit land. Subsequently, the relations and a next friend of the plaintiff came to know about the execution of the Power of Attorney and the consequent sale deed referred to above and thereafter obtained certified copy of the same on 09.08.1988. Upon discovery of these documents it was found that defendant No. 2 played fraud on the plaintiff for obtaining these documents. On these facts, the plaint was presented by aforesaid Nabendu Bikash Deb on 16.09.1988. In the aforesaid suit the defendant No. 1, being the predecessor and defendant No. 2, being the constituted attorney was impleaded as defendant Nos. 1 & 2 respectively.
2. On being summoned the aforesaid two defendants submitted written statement and specifically denied the plea of the plaintiff that plaintiff was insane after 1985, that its power of attorney was duly executed and registered by the plaintiff himself, that the plaintiff opened Savings Bank Account with the United Commercial Bank on 22.02.1986 by SB Account No. 3379 and went on operating the said account from time to time. The defendants further disclosed that having obtained possession of the land pursuant to purchase on 18.09.1987 the land was subsequently sold to one Kusum Rani Das on 09.08.1988 who has been possessing the land pursuant to purchase. In its written statement the defendants took the plea that the suit is not maintainable in present form and that it is also bad for non-joinder of Kusum Rani Das. After filing of this written statement, plaintiff brought the plaint amended and made aforesaid Kusum Rani Das impleaded as defendant No. 3 in the case vide order dated 12.05.1989. Thereafter summon was issued to the newly impleaded defendant No. 3 (Kusum Rani Das) who also submitted written statement and d
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