TMI Blog1976 (8) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... lands belonged originally to the respondent's husband who died on February 20, 1960 leaving her as his sole heir. On December 29, 1961 a power of attorney was prepared for being executed by the respondent in favour of Western India Trustee and Executor Co. Ltd., Satara. The object of the power of attorney, as expressed therein, was inter alia, to authorize the Company to collect the income of the land and to take steps for disposing of the land by sale. But for some reason or the other the document remained unexecuted. On February 1, 1963 the respondent executed a power of attorney in favour of the appellant. The true nature of this document and its real purpose are both in dispute but ex-facie, the document was to be effective for a period of one year and was executed in order to enable the appellant to manage the respondent's lands and to arrange to cultivate them. By a letter dated March 3, 1963 addressed to the respondent, the appellant agreed to undertake the duties specified in the power of attorney and to pay to her a sum of ₹ 2000 annually from the net income of the lands. The rest of the income, according to the letter, was to be retained by the appellant fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal, allowing a revision application filed by the appellant, differed from the concurrent finding of fact recorded by the authorities below and held that the appellant was in possession of the lands as a tenant of the respondent. The judgment of the Tribunal was set aside by the Bombay High Court in Special Civil Application No. 1430 of 1971. The High Court held that the appellant was in possession of the lands as an agent of the respondent under the power of attorney and that the Tribunal was in error in upsetting the finding of the Collector and the Tahsildar that the appellant was not a tenant of the respondent. The appellant's application for leave to appeal to this Court was dismissed by the High Court and the petition for special leave filed in this Court met with the same fate. The proceedings under Section 85-A of the Bombay Tenancy Act ended sometime late in 1972. 8. Thereafter, on December 4, 1972 the appellant filed an application in the trial court for amendment of his written statement seeking leave to plead that he was in possession of the lands in part performance of an agreement of sale between himself and the respondent and that therefore he was entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in possession of the lands as a tenant of the respondent. Having carried that point from the Tahsildar to the Supreme Court and having failed to establish it, the appellant set up an entirely new and inconsistent case at the hearing of the suit that he was in possession of the lands under an agreement of sale and was therefore entitled to protect his possession under Section 53A of the Transfer of Property Act. The application for amendment of the written statement seeking leave of the trial court to raise this plea was rejected by it and the order was confirmed in revision by the High Court. Apart from the fact that the application for amendment was made at a late stage of the proceedings, on merits, there is no substance whatever in the contention that the appellant is entitled to protect his possession under Section 53A. That section provides, in so far as material, that if any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surprised that the trial court dismissed the appellant's application for amendment of the written statement and the High Court, while confirming that order in revision, characterized the application as mala fide. 12. It is urged on behalf of the appellant that the power of attorney is a sham and colourable document, its object was to arm the appellant with a written authority to evict unauthorised occupants from the lands and that its real purpose was to put the appellant in possession as a potential purchaser. To an extent, it is correct that the real object of the power of attorney was different from that which is expressed in the document. The real object was to enable the appellant to obtain possession of the lands from Nathuram Agarwal and others who were in possession thereof unauthorizedly. The power of attorney recites that the respondent herself was in possession of the lands but that was an untrue statement of which the explanation may be sought in the notorious unwillingness of a true owner to acknowledge in writing the possession of a trespasser. But though the recital that the respondent was herself in possession of the property was not consistent with the true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h evidence as there is on the record seems inadequate to prove the improvements made or the expenses incurred by the appellant. He has admitted in his evidence that the figures which he gave in his examination-in-chief as regards the amount spent on improvements were stated from memory and that he had not produced his accounts to corroborate the oral word. Only one more thing need, be stated : even assuming that the appellant has executed work of a permanent character on the land it cannot be said that he has done so acting upon the licence , as required by Section 60(b) of the Easements Act. If he really improved the land by executing a work of a permanent character, he did so in the belief that being a tenant he will become a statutory purchaser of the land, or that the oral agreement of sale will one fine day be implemented. The execution of work would therefore be in his capacity as a tenant or a prospective purchaser and not in his capacity, as a licensee. 15. Mr. Bal also challenged the decree for the payment of ₹ 4390 which has been passed in favour of the respondent by the trial court. It is true that there was no accountability as such between the appellant and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
