MUNNI Vs. ATMA RAM

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree of the learned District Judge, Simla, who affirmed the decree and judgment passed by the Sub -Judge, Theog.

(2.) Aggrieved by the said decree and judgment, the appellant has preferred this second appeal. The relevant facts may be stated. The respondent (hereinafter referred to as the plaintiff) filed a suit against the appellant (hereinafter referred to as the defendant) for the possession of land measuring 6 bighas 4 biswas as detailed in the plaint. The land in suit was owned by Smt. Sahabi, who was an old woman of about 70 years. She was not able to cultivate the land and appointed Shri Anant Ram, the father of the plaintiff, as her General Attorney by executing a registered document to this effect. Inter alia, She authorised the said Anant Ram to lease out the land to some one so that she may have some income and also save the expenses of its cultivation. The aforesaid attorney leased out the suit land to the plaintiff at the annual rent of Rs. 150/ - and also delivered the possession to the plaintiff in the month of Asauj Sambat 2020 BK, corresponding to about the month of September, 1963. The plaintiff approached the Patwari for making necessary entries in the revenue record to this effect. The Patwari, however, is alleged to have directed the plaintiff to get a writing executed so that during the crop inspection the requisite entry could be incorporated in the revenue record. Thereafter, the plaintiff executed a rent note in favour of Smt. Sahabi on 30th January, 1964. Smt. Sahabi left for Pakistan and executed a gift deed in favour of the defendant on 11th May, 1964 in respect of the land in suit. On the basis of the gift deed, the defendant disputed the possession of the plaintiff and asserted that she was in the physical possession of the land. Proceedings under Section 145 Cr. P. O. were initiated by the defendant during the month of September, 1964. The Magistrate by an order dated 18th May, 1965, held the defendant to be in possession and restrained the plaintiff from interfering with her possession. The plaintiff preferred a revision petition before the Sessions Judge and thereafter before the Judicial Commissioner but without any success. It was thereafter that the plaintiff filed the suit. The defendant inter alia contended that from the time of the execution of the gift -deed, she was in possession of the land as &n owner and that Shri Anant Rani was not appointed as a General Attorney and that even if such an appointment was made the same was revoked and cancelled by Suit. Sahabi. The factuin of the land being leased out to the plaintiff was also disputed. The learned trial court after considering the evidence on record came to the conclusion that Smt. Sahabi had appointed Shri Anant Ram as her General Attorney and inter alia empowered him to lease out the suit property. The trial court also found that the plaintiff was given the suit land by way of lease by Anant Ram, initially by an oral lease and thereafter by executing a rent note, the gift deed, however, in favour of the defendant was found valid. Ultimately, the suit of the plaintiff was decreed. The defendant preferred an appeal before the District Judge who also affirmed the decree and judgment passed by trial court. The defendant has ultimately preferred this second appeal to this Court.

(3.) Mr. Chhabil Dass, learned counsel for the appellant, has raised only two grounds. The first ground taken by him is that Shri Anant Ram, who was appointed as a General Attorney by Smt. Sahabi, could not lease out the suit land to the plaintiff, who is his son. It is contended by him that it is not permissible for an attorney, who acts as an agent for his principal, to lease the land to his own son. Such a transaction, according to him, is voidable if not void. The second ground of the learned counsel is that the lease in favour of the plaintiff has not been properly proved. It may be pointed out that the ground No. 1 was neither agitated before the trial court nor before the lower appellate court. It is for the first time that this ground has been taken in this Court.