JUDGMENT

Dated, this the 27th March, 2024 This Regular Second Appeal is filed in the year 2019. However, the same is not seen admitted so far. Therefore, the Second Appeal is admitted on the following substantial questions of law:

(i) Whether the trial court, as also, the appellate court erred in finding that the suit, O.S.No.24/2013 is impliedly barred by law, inasmuch as an alternative remedy is provided in the Transfer of Registry Rules?

(ii) In a situation where mutation has already been effected on the strength of a title deed, is it proper in law to cancel the mutation, only on the contention of the respondents that the title deed is invalid, for the reason that the Power of Attorney, acting upon which the title deed was executed, was not in force and that the same does not empower the execution of such a title deed?

2. It appears that before issuance of notice, the respondents have appeared through their counsel and going by the endorsements, it could be seen that both sides sought for time on 15.02.2023. As per the endorsement on 27.02.2024, it is seen that appellants are ready for argument, respondents 1 and 2 appeared through learned Government Pleader and that there is no representation for other respondents. Accordingly, the matter was posted for today (27.03.2024).

3. Heard the learned counsel for the appellants; the learned Government Pleader for respondents 1 and 2 and the learned counsel for the 3rd respondent. Learned counsel were heard on the questions of law framed above, as also, on the relative merits of the case.

4. Learned counsel for the appellants would submit that the concurrent findings of the trial court and the First Appellate Court, in finding implied bar to the suit in question, is completely untenable. Learned counsel would invite the attention of this Court to the fact that mutation was effected in favour of the plaintiffs/appellants on the strength of Ext.A1 title deed executed in the year 1990. It is the contention of the 3rd respondent that Ext.A1 document is not valid for the reason that the Power of Attorney, acting upon which, Ext.A1 was executed, was not surviving as on the date of Ext.A1 and that it did not empower the power holder to execute a document like Ext.A1 in favour of the plaintiffs/appellants. Learned counsel would submit that, in the backdrop of the above referred contention, it was incumbent upon the 3rd defendant/3rd respondent to seek a declaration that Ext.A1 document is invalid/illegal and to seek consequential cancellation of mutation on the strength of such a declaration. In the absence of a declaration, a mere request to cancel mutation before the Revenue Authority namely, the 2nd respondent Tahsildar, was completely misconceived and that the order passed by the Tahsildar cancelling the mutation is grossly illegal and without jurisdiction or authority. In such circumstances, the suit was filed for cancellation of the order - as per which mutation was cancelled - and also for an injunction from effecting mutation in respect of the plaint schedule properties in favour of 3rd defendant. On merits, it was submitted that none of the defendants have produced any evidence, oral or documentary, whatsoever, before the trial court. It was specifically pointed out that the 3rd defendant/ the contesting defendant had not even mounted the box, but chose to remain contended by filing a written statement. According to the learned counsel, the cancellation of Patta is liable to be interfered with and inasmuch as the civil rights of the plaintiffs are affected and in view of the fact that the suit in question was nothing, but a suit of the civil nature, the same is quite maintainable before a Civil court in terms of Section 9 of Code of Civil Procedure.

6. Refuting the above contentions, learned counsel for the 3rd respondent would submit that the Power of Attorney in question was executed for the specific purpose of assigning 30 cents of land in favour of the sister of the 3rd responde