Prabir Kumar Samanta, J.:— The plaintiff/respondent filed the suit for eviction of the defendants/appellants upon contention that they have no legal right to occupy the suit premises. The case of the plaintiff respondent in short is that she purchased the suit flat in a housing complex from one Nandalal Tantia by a registered deed of conveyance dated 28.2.1990 Earlier a suit for eviction was filed by the predecessor-in-interest of the plaintiff against the mother of the defendants/appellants as being a licensee of the said premises. In the said suit the plaintiff/respondent was not allowed to be added as a party even upon acquisition of interest in the suit flat and as a result of which the suit was dismissed for default. Thereafter, the plaintiff/respondent served a notice to quit upon the defendants for vacating the suit premises and filed the present suit.

2. Defendant No. 2 alone contested the suit. The said defendant contended that Nandalal Tantia was not the owner of the suit property and he had no right, title and interest therein and as such the plaintiff/respondent did not acquire any right, title and interest in the suit premises by virtue of her purchase of the same by a registered deed of conveyance dated 28.2.1990 The said defendant further made out a case for acquisition of title by adverse possession upon contention that the said defendant has been occupying the suit premises along with his mother since 11th October, 1978 as of right and adversely against the rightful owner and since after the death of his mother in the year 1983 he is in possession of the same adversely against the interest of any other person.

3. It transpired from the materials-on-record that one Mr. Indra Kumar Halani executed the said deed on behalf of Nandalal Tantia as his constituted Attorney and presented the same for registration. The deed in question was thus registered on 28.02.1990 and was marked as Exhibit-1. The said special Power of Attorney as executed by Nandalal Tantia in favour of Mr. Indra Kumar Halani on 19.02.1990 was marked as Exhibit-10. As Indra Kumar Halani had presented the deed of conveyance (Exhibit-1) for registration, the Trial Court held that such registration was hit by the provisions of section 33(1)(a) of the Indian Registration Act as the Power of Attorney in favour of Indra Kumar Halani was not executed before and authenticated by the Registrar or Sub-Registrar within whose District or Sub-District said Nandalal Tantia resided. The Trial Court accordingly dismissed the suit as the plaintiff did not acquire any right, title and interest by virtue of her purchase by the said deed of conveyance dated 28.02.1990 (Exhibit-1).

4. In the appeal filed by the plaintiff/respondent against the said judgment and decree of dismissal the Court of Appeal below upon consideration of evidence of both the parties and the materials-on-record held that the defendant failed to establish his case for acquisition of title in the suit premises by adverse possession. On the question of presentation of the said deed of conveyance (Exhibit-1) for registration by Indra Kumar Halani the Court of Appeal below held that the same was properly registered as Indra Kumar Halani being the executant of the same had presented the same for registration and as such the provisions of section 33(1)(a) of the Indian Registration Act were not applicable in the facts and circumstances of this case and consequently decreed the suit for eviction.

5. It is recorded that the defendant/appellants did not assail the findings made by the Court of Appeal below that they did not acquire right, title and interest in the suit premises by way of adverse possession, in this appeal. Upon consideration of the findings as made by the Court of Appeal below and the materials-on-record this Court is also of the view that the findings so made by it did not suffer from any perversity. Such finding therefore became a finding of fact by the last Court of facts. At the hearing of this appeal Mr. Haradhan Banerjee, learned Advocate, appearing on behalf of the defendant/appellant raised the following substantial questions of law for decision:—

1. Whether the findings of the Court as regards the validity of the Sale-Deed being Exhibit-1 executed and presented by an agent Indra Kumar Halani on behalf of the principal on the strength of a Power of Attorney (Exhibit-10) is sustainable in law, when admittedly Exhibit-10 was not registered nor an authenticated document in the manner prescribed in section 33 of the Registration Act.

2. Whether the findings of the Appellate Court as to the validity of the registration of the document (Ext. 1) done on good faith and on active participation of the Registrar by drawing inference from section 87 of the Registration Act is liable to be sustained in law when the question-at-issue is not the defects in the procedure of the Registrar, but the lack of jurisdiction and more so, when the finding recorded by the Trial Court in this regard was not reversed.

6. It is also recorded herewith that no other points were raised on behalf of the defendant/appellants at the hearing of this appeal.

Question No. 1

7. Mr. Banerjee in support of his contention as above that the deed of conveyance (Exhibit-1) being hit by the provisions of section 33(1)(a) of the said Act did not confer any title in favour of the plaintiff/respondent referred to the decisions reported in AIR 1914 PC 16 (Jambu Prasad v. Muhammad Nawab Aftab Ali Khan); AIR 1929 PC 279 (Ma Pwa May v. S.R.M.M.A Chettiar Firm); AIR 1954 SC 316 (Sri Sri Kishore Chandra Singh Deo v. Babu v. Ganesh Prasad Bhagat); and AIR 1961 Cal 540 (Abdus Samad… v. Majitan Bibi & Anr.…). Mr. Banerjee further contended that the decision of the learned Single Judge as reported in AIR 1984 Cal 297 (Goswami Malti Vahuji Maharaj…Plaintiff; v. Purushottam Lal Poddar…Defendant.) upon which reliance was placed by the Court of Appeal below is not a good law in view of the aforesaid decisions. Before dealing with the decisions so cited by Mr. Banerjee it is necessary to consider the provisions of sections 32 and 33(1)(a).

8. Section 32 of the said Act primarily stipulates that every document to be registered shall be presented at the proper Registration Office by some person executing the same. Section 33(1)(a) of the said Act provides that for the purpose of section 32 i.e, for the purpose of presentation of a document for registration, only such Power of Attorney shall be recognised for such presentation which has been executed by the principal before and authenticated by the Registrar or Sub-Registrar within whose District or Sub-District the principal resides. Thus upon conjoint reading of section 32 and section 33(1)(a) of the said Act it appears that while section 32 empowers the executants of a document to present the same for registration without any reservation, but requires the Power of Attorney to be executed before and authenticated by the Registrar or Sub-Registrar within whose District or Sub-District the principal resides for valid presentation for registration by the constituted attorney on behalf of the principal. Because under clause (a) of section 32 the power to present a document for registration by some person executing the same has been made without reservation whereas clause (c) stipulates that such presentation shall be by the agent of such person, representative or assignee duly authorised by Power of Attorney executed and authenticated in the manner provided in section 33(a) of the said Act. These two clauses read together make it clear that the agent, representative or assignee of the principal whether authorised or not to execute the document on behalf of the principal will be entitled to validly present the documents for registration only when such agent, representative or assignee has been duly authorised by Power of Attorney executed and authenticated in the manner provided under section 33(1)(a). If that position is accepted, and it has to be accepted as such in view of the provisions contained therein, can it be said that only for the purpose of presentation of document for registration which has been executed by the principal himself such requirements would be necessary but for the purpose of execution of the document on behalf of the principal such requirements would not be necessary? Such interpretation would make the said provisions otiose, because by a Power of Attorney which is neither executed nor authenticated in the manner as provided under section 33(1)(a) of said Act, an agent, representative or assignee of the principal who will not be entitled to validly present a document for registration would then be entitled not only to present for registration but also to execute the same on behalf of the principal. In other words each clauses of section 32 has its independent application and meaning and one has not the effect of substituted application over the other. Therefore, section 32 read as a whole along with section 33(1)(a) of the said Act would imply that whenever by a Power of Attorney a principal authorises his agent, representative or assignee to execute a document on his behalf, such Power of Attorney would be required to be authenticated in the manner provided under section 33(1)(a) of the said Act.

9. The view as taken by a learned Single Judge in the decision reported in AIR 1924 Allahabad 148, Aisha Bibi v. Chhajju Mai, in which reliance has been placed by the Court of Appeal below that where a person holds a Power of Attorney to execute a document on behalf of his principal and the document has been executed by him as such he is, so far as the Registration Office is concerned, the actual executant of the document and is entitled under section 32(a) to present it for registration and to get it registered, he need not possess a separate power authenticated as under section 33, is not binding upon this Court. More so when the Division Bench of this Court in the decision reported in AIR 1961 Cal 540, Abdus Samad v. Majital Bibi, has laid down in no uncertain terms that a person who executes a document on behalf of another who resides outside India under a Power of Attorney is not a person who has executed the document within the meaning of section 32(a). When he presents the document for registration he presents it as an agent of the principal under the Power of Attorney and not as executant. That Power of Attorney not having had been executed and authenticated as provided for in section 33(1)(c) of the Registration Act was not recognisable for the purpose of section 32. This Division Bench decision is binding on me. Same analogy would apply in case of a person falling under the purview of section 33(1)(a) of the Act.

10. The decision of the learned Single Judge as reported in the case of Goswami Malti Vahuji Maharaj, AIR 1984 Cal 297 and relied on by the Court of Appeal below is no doubt a decision arrived at upon distinguishing the above decision of the Division Bench of this Court.

11. In the case in hand the Power of Attorney (Ext. 10) is admittedly not a registered document. This Power of Attorney was simply notarised by a Notary. There is no specific endorsement in the said Power of Attorney by the Notary that the executant had put his signature therein in his presence. Again for the purpose of section 33(1)(a) a notarised Power of Attorney by the principal who resides in India has not been provided for. That apart on the reasonings of my own as above I do not find the decision of the learned Single Judge as reported in AIR 1984 Cal 297 is of persuasive nature for coming to a conclusion on the question in favour of the respondent. In the said reported decision Exhibit-A revealed that Rash Behari Burman had executed Exhibit-A on behalf of the other co-sharers pursuant to a Power of Attorney dated 4.6.1970 granted for that purpose by his principals. There was no positive evidence before the Court in that case that the power given to Rash Behari Burman on 4.6.1970 was bad. The document was also not before learned Single Judge. The learned Judge accordingly recorded that Rash Behari Burman was the actual executant of the document within the meaning of section 34(1) of the Act and in that capacity he admitted the execution under section 35 and presented the same for registration under section 32(a) of the Act. It was, therefore, held that the provisions of section 33 of the Act will not apply in that case as the executant himself admitted execution and presented the same for registration. This decision was rendered by the learned Single Judge as there was no positive evidence that the power given to Rash Behari Burman on 4.6.1970 was bad. The learned Judge also did not have occasion to see the same as the same was not produced at the trial. Therefore, on the facts of that case it cannot be said that the said decision of the learned Single Judge was by way of laying down the general proposition that if a person executes a document on the strength of a Power of Attorney then irrespective of the question as to its execution and authentication in the manner prescribed under section 33(1)(a) of the Act, such person will step into the shoes of the executant and will be governed by sections 34(1) and 35 of the Act and shall be entitled to present the same for registration under section 32(a) of the Act. In such consideration I hold that the above Single Bench decision has no manner of general application on the question involved in this case.

12. Before the Privy Council in the case of Jambu Prasad, AIR 1914 PC 16 the question as to the validity of the registration of mortgage deeds dated 2nd July, 1882 and 10th August, 1886 was involved. The mortgage deed of 2nd July, 1882 was presented for registration at proper Registration Office on behalf of the mortgagee by one Nathumal who held a Power of Attorney from the mortgagee which however did not empower Nathumal to present documents for registration. Similarly the mortgage deed of 10 August, 1886 was presented for registration at proper Registration Office on behalf of mortgagee by one Ilahi Bakhsh who held a Power of Attorney from the mortgagee which however did not empower Ilahi Bakhsh to present documents for registration. The mortgagors admitted before the Registration Office, the execution and completion of the mortgage deeds and acknowledged the receipt by them of the mortgagee moneys. It was contended that it might be presumed that the mortgage deeds had been presented by registration by the mortgagors who had executed the deeds and who attended the Registration Office. In that context it was held that it is obvious that executants of a deed who attend before a Registrar or Sub-Registrar merely to admit that they have executed it cannot be treated, for the purpose of section 32 of the Registration Act, 1877, as presenting the deed for registration. They, no doubt would be assenting to the registration, but that would not be sufficient to give the Registrar jurisdiction. This decision at least indicates that compliance of the provisions of section 33(1)(a) of the Act is necessary for a valid registration of a document.

13. The decision of the Supreme Court in the case reported in AIR 1954 SC 316 is not on the particular issue involved in this case. In the said case Mr. Tapp as the agent of the defendant, under the Power of Attorney executed by him, (Exhibit-B) presented Exhibit-A for registration. Question was whether that power (Exhibit-B) satisfied the requirements of section 33. The said power (Exhibit-B) was found to have been authenticated by the Registrar as the endorsement in Exhibit-B had shown that the Registrar examined the principal at his residence and satisfied himself that he had executed it voluntarily. The contention of the appellant that Exhibit-B was presented for registration by Sundaram who described himself as the personal assistant of the defendant and was therefore not authorised to present it for registration, was repelled by holding that even if there had been a presentation of Exhibit-B for registration and that was unauthorised, that did not detract from the validity of the subsequent authentication before the Registrar, which was an independent act complete in itself and valid under section 33. This section however recognised authentication though made subsequently.

14. I accordingly answer the question No. 1 in favour of the appellant.

Question No. 2

15. The Privy Council in the decision reported in AIR 1929 PC 279 dealt with section 87 of the Registration Act and held that in seeking to apply section 87 it is important to distinguish between defects in the procedure of the Registrar and lack of jurisdiction. Where, therefore, a document not duly stamped is admitted for registration the mistake is an error in procedure and is cured by section 87. The Privy Council in the case of Jambu Prasad held that presentation of a document, by a constituted attorney who had not been empowered by a Power of Attorney, did not confer a jurisdiction upon the Registrar. A Power of Attorney not in conformity with the manner prescribed in the Act, for the purpose of presentation of a document for registration certainly cannot empower the constituted attorney to present a document for registration on the basis thereof so as to attract jurisdiction of the Registrar. Section 33(1)(a) relates to the competency of a constituted attorney to present a document for registration, therefore, a matter involving the exercise of jurisdiction by the Registrar and not a matter concerning procedure for registration only.

16. Section 34 of the Registration Act in its language speaks that no document shall be registered under this Act unless the persons executing such document, or their representatives, assignees or agents authorised as aforesaid, appear before the Registering Officer within the time prescribed under the Act. The words “authorised as aforesaid” obviously refer to the provisions of section 33(1)(a) of the Act. Thus upon conjoint reading of the sections 32, 33(1)(a) and 34 it is difficult to conclude in this case that Indra Kumar Halani became the executant all by himself on the basis of a Power of Attorney (Exhibit-10) which was neither executed nor authenticated in the manner provided under section 33(1)(a) so as to present the deed (Exhibit-1) for registration in compliance with the provisions of section 32(a).

17. In such consideration I am of the opinion that section 87 cannot be applied to cure the defect in the exercise of jurisdiction. I, therefore, answer the question No. 2 in favour of appellant.

18. Mr. Jyotirmoy Bhattacharya, learned Advocate appearing on behalf of the respondent alternatively contended that irrespective of Exhibit-1, the respondent became the owner of the suit flat as being a member of the Co-operative Housing Society in whose housing complex the suit flat is situated. Accordingly, he contended that the plaintiff/respondent is entitled to recover possession of the suit flat from the defendants as being an allottee of the suit fiat by the said Society and since the defendants have no legal right to occupy the same. This contention cannot be entertained at this stage. The plaintiff did not make out any case in his plaint on that score. In the Court of Appeal below also, such specific plea was not taken. The case was not tried on that basis too. No one was examined on behalf of the Society in support of such case of the plaintiff. This plea therefore cannot be agitated for the first time at the second appeal stage.

19. In the result, the appeal succeeds. The judgment and decree passed by the Court of Appeal below is set aside and those of the Trial Court are restored. There will be no order as to costs.

Appeal succeeds.

A.D