( 2025:JHHC:17467 ) IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 245 of 2019 1. Sushant Kumara Das @ Khoka aged about 62 years 2. Prashant Kumar Das @ Lakhan aged about 53 years Both sons of Late Suresh Chandra Das, resident of Biroja Kuthir, Dimna Road, P.O. & P.S.-Mango, Town-Jamshedpur, District Singhbhum East … … Appellants/Appellants/Defendants Versus 1. Gokul Chandra Das, S/o Late Dengur Das and foster son of late Parwati Kumar Das, resident of Biroja Kuthir, Dimna Road, P.O. and P.S.-Mango, Town-Jamshedpur, District-Singhbhum East, presently residing at Kulpukur, P.O. Nahata, P.S. Bangaon, District 24 Pargana, West Bengal (substituted vide order dated 28/07/2022) 1(a) Renubala Das W/o Late Gokul Chandra Das 1(b) Debashish Das S/o Late Gokul Chandra Das 1(c) Bandana Das D/o Late Gokul Chandra Das 1(d) Chandana Roy D/o Late Gokul Chandra Das All are resident of-Kulpukuria, P.O. Satashi, P.S.Gopalnagar, District- North 24 Parganas (West Bengal) Respondents/Respondents/plaintiffs --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants : Mr. Manjul Prasad, Senior Advocate : Mr. Baban Prasad, Advocate : Mr. Alkhouri Prakhar Sinha, Advocate : Mr. Aman Kedia, Advocate For the Respondents : Miss Prerna Jhunjhunwala, --- 11/24.06.2025 Heard the learned counsel appearing on behalf of the parties. 2. This appeal has been filed against the judgment dated 13.06.2019 (decree signed on 27.06.2019) passed by the learned Principal District Judge, East Singhbhum, Jamshedpur in Civil Appeal No. 70 of 2018 upholding the judgment dated 31.08.2018 (decree signed on 13.09.2018) passed by Civil Judge (Junior Division)-1, Jamshedpur, in Eviction suit No. 33 of 2005. The suit was decreed on contest. 3. This appeal has been admitted vide order dated 21.01.2020 on the following substantial questions of law:- ( 2025:JHHC:17467 ) 2 “Whether the appellate court below has failed to consider the well settled legal proposition that the power of attorney holder cannot depose in place of the principle in view of the provision of Order III Rule I CPC which empowers the holder of power of attorney to act on behalf of the principle.” Arguments of the appellants (defendants) . 4. The learned senior counsel appearing on behalf of the appellants has submitted that the suit was filed through the power of attorney holder and the executor of the power of attorney holder claimed that he was the adopted son of the owner of the property and claimed inheritance as class-I heir. The learned counsel submits that as per the case of the plaintiff, the adoption had taken place way back on 14.01.1948 on the day of Makar Sankranti and that all the rituals for the purposes of adoption was duly undertaken. He submits that the power of attorney admittedly came in picture much thereafter and consequently he could not have deposed on the factum of adoption. 5. He has submitted that the factum of adoption was crucial to the case in as much as the defendant’s case was that there has been no adoption, rather the plaintiff was a just a foster son of the original owner of the property and the defendants claimed inheritance by stating that the original owner died issue-less and that the defendants were close relative of the original owner of the property. The learned senior counsel has submitted that if the executor of power of attorney was just a foster son of the original owner of the property, the property could not have devolved upon him as class-I heir and ultimately the property could have gone to the close relative of the original owner of the property who were defendants in the suit. 6. The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in 2013 AIR SCW 3561 paragraph no. 13, to submit that power of attorney may depose for the principal in respect of such acts but it cannot depose for the ( 2025:JHHC:17467 ) 3 principal for the acts done by the principal and not by him. The learned counsel submits that the factum of adoption was required to be proved and in absence of the executor of the power of attorney, there could not have been any cross examination on the factum of adoption and therefore it cannot be said that the adoption of the executor of power of attorney by the original owner of the property was duly proved and therefore on account of non- examination of the executor of the power of attorney before the learned court, the suit could not have been decreed. He has also submitted that it was for the plaintiff to prove his own case and therefore adoption having not been duly proved before the court as per law, both the judgments, passed by the trial court as well as learned 1st appellate court, are fit to be set aside. Arguments of the respondents (plaintiffs) . 7. The learned counsel appearing on behalf of the respondents representing the plaintiffs has opposed the prayer and has heavily relied upon exhibit-6, the judgement passed in Title Suit no. 37 of 1993. He submits that using the same power of attorney the plaintiff had executed two sale deeds dated 27.08.1990 and 16.03.1993 relating to a portion of the suit property belonging to the original owners. She submits that the said sale deeds were subject matter of challenge in Title Suit No. 37 of 1993 and in the said suit, the power of attorney was also under challenge primarily on the ground that the executor of power of attorney had no title over the property and therefore the sale deed executed through the power of attorney were also illegal, null and void. She submits that during the pendency of the present suit, the judgment in the said Title Suit no. 37 of 1993 (exhibit-6) was passed. The Title Suit no. 37 of 1993 was dismissed meaning thereby that the sale deeds as well as the power of attorney was upheld. She has submitted that the appeal against the judgment passed in Title Suit No. 37 of 1993 has been dismissed in Title Appeal No. 21 of 2011 and the Second Appeal No. 631 of 3015 has also been dismissed. ( 2025:JHHC:17467 ) 4 8. The learned counsel has submitted that the specific argument raised by the appellants in Second Appeal No. 631 of 2015 [arising out of Title Suit no. 37 of 1993 and Title Appeal No. 21 of 2011 ] was that the adoption of the plaintiff by the original land owner was not duly proved. She submits that against the concurrent findings recorded by both the courts, the second appeal in connection with Title Suit no. 37 of 1993 and corresponding Title Appeal No. 21 of 2011 has been dismissed without framing any substantial question of law and the said judgment passed in Title Suit no. 37 of 1993 (exhibit-6) has attained finality. The learned counsel has submitted that the judgment passed in the Title Suit no. 37 of 1993 was marked as Ext. 6 in the present suit and has placed the said judgment (exhibit-6) and has submitted that the point of adoption was directly and substantially in issue before the learned Trial Court in the said proceedings and has referred to paragraph 12 of the said judgement and the learned counsel has submitted that after appreciating the materials on record the Trial Court in Title Suit no. 37 of 1993 has come to a clear finding in paragraph nos. 18 and 20 that there was a valid adoption of plaintiff (the executor of power of attorney. 9. The learned counsel has submitted that once there was a judicial pronouncement in connection with the validity of adoption of the executor of the power of attorney, there was no need for the executor of the power of attorney to appear before the learned court in the present proceedings again to prove the adoption. The learned counsel submits that in such circumstances, the examination of power of attorney and exhibition of Exhibit-6 [ judgement passed in Title Suit no. 37 of 1993] was sufficient to decree the suit as there was nothing further to be adjudicated with regard to the factum of adoption. The finding in connection with factum of adoption has attained finality in a proceeding arising out of earlier suit, the substantial question of law in the present case be answered in favour of the respondents and against the appellants. Findings of this Court. ( 2025:JHHC:17467 ) 5 Case of the Plaintiffs 10. The plaintiffs/respondents filed a suit seeking recovery of possession of a property measuring approximately 4 kathas of land, including a house built thereon, situated on a portion of Plot No. 4832, Khata No. 776, Ward No. 9, Mouza Mango. It was claimed that Parwati Kumar Das purchased a total of 7 kathas and 15 dhurs of land from Bibhisan Gour, Kokil Gour, Shyam Gour, and Kanhai Gour through registered sale deeds dated 19.02.1958 and 09.04.1959. On this land, Parwati Kumar Das constructed a double-storied house where he lived with his wife, Biroja Bala Das. 11. Since the couple had no biological children, they adopted the plaintiff around 1948. The adoption was performed following proper rituals and in the presence of the plaintiff’s natural parents on 14.01.1948, the day of Makar Sankranti. At that time, the plaintiff was four years old. The plaintiff was later admitted to school in 1949, where Parwati Kumar Das was recorded as his father. After the deaths of Biroja Bala Das and Parwati Kumar Das who predeceased her, the plaintiff, claiming to be the sole Class-I heir, took possession of the entire 7 kathas 15 dhurs of land and began managing it by letting out parts to tenants, collecting rent, and paying utility charges. Subsequently, the plaintiff sold 3 kathas 15 dhurs of the land to Sulekha Mandal and her husband Sushanta Kumar Mandal through registered sale deeds dated 27.08.1990 and 16.03.1993. The remaining 4 kathas of land continued to be under the plaintiff's possession. 12. The plaintiffs further stated that Suresh Chandra Das, the father of the defendant, was allowed to reside in a portion of the building as a licensee due to his refugee status from East Bengal and his familiar relationship with Biroja Bala Das. Even after the deaths of the original owners, he continued to occupy the property as a licensee under the plaintiff. However, he eventually refused to vacate the premises. After his death, the defendants (his legal heirs) also refused to vacate, leading to the present suit for eviction. The ( 2025:JHHC:17467 ) 6 plaintiff also stated that Suresh Chandra Das filed a suit to annul the sale deeds made in favour of the Mandals (T.S. No. 37/1993). Additionally, Suresh allegedly created a forged will in the name of Biroja Bala Das, leading to a probate proceeding (Probate Case No. 105/1993), which was later converted into a Letter of Administration case after his death. Meanwhile, other tenants of the property had vacated their portions and handed over possession to the plaintiff’s power of attorney holder. Since the defendants refused to vacate the premises, the present suit for ejectment and recovery of possession was filed. Case of the Defendants: 13. In the written statement, the defendants raised several technical objections regarding the maintainability of the suit. They contended that the suit was improperly instituted by Sushanta Kumar Mandal, who lacked the legal authority to sign and file the plaint on behalf of the original plaintiff, Gokul Chandra Das. The original power of attorney was not filed with the plaint, nor was the permission of the court sought to bring the suit in a representative capacity. The suit was also alleged to be bad for non-joinder of necessary parties, as Suresh Chandra Das, the predecessor of the defendants, died leaving behind two sons and four daughters, and the daughters were not made parties to the suit. 14. The defendants disputed the plaintiff’s claim of ownership and adoption. They alleged that the original sale deed in favour of Biroja Bala Das was not produced, and further argued that the claim of benami ownership in the name of Parwati Kumar Das was untenable, asserting instead that Biroja Bala Das was the lawful owner of the suit property. While admitting that Parwati Kumar Das and Biroja Bala Das had no natural children, they claimed that Suresh Chandra Das had been residing with the couple since childhood, after migrating from Bangladesh. The defendants also stated that the house was constructed when the entire family, including the defendant’s father, moved into the property. ( 2025:JHHC:17467 ) 7 15. The defendants denied the plaintiff’s claim of adoption, asserting instead that Gokul Chandra Das was merely a foster child, brought to Jamshedpur by the defendant's father from Bangladesh, and was residing in the house but was never formally adopted. They questioned the credibility of any supporting records, such as voter lists or ration cards, and labeled such entries as fabricated. The authority of Sushanta Kumar Mandal to institute the suit on behalf of Gokul Chandra Das was also challenged, arguing that Sushanta Kumar Mandal had no connection to the events and was not even born when Gokul Chandra Das was brought to Jamshedpur. 16. Further, the defendants contested the validity of the sale deeds executed by Sushanta Kumar Mandal in favour of himself and his wife, alleging that these documents were self-serving and invalid and a separate suit had already been filed challenging them. They denied being licensees under the plaintiff and instead asserted that they were legal heirs of Biroja Bala Das, thereby inheriting the property. Additionally, they claimed that a valid WILL executed by Biroja Bala Das existed, in which the suit property was bequeathed to the defendant. In conclusion, the defendants prayed for dismissal of the suit on grounds of non-maintainability, lack of authority, and invalid claims of ownership and adoption. Issues framed by the learned trial Court and the trial Court’s judgement : 17. On the basis of the pleadings of the parties, the learned Trial Court framed the following issues for consideration: 1. Whether the suit is maintainable in present form as per relief claimed? 2. Whether the plaintiff has a valid cause of action for the suit? 3. Whether the suit is barred by law of limitation? 4. Whether the suit is barred by the provisions of Specific Relief Act? ( 2025:JHHC:17467 ) 8 5. Whether the suit is barred by non-joinder of necessary parties? 6. Whether the plaintiff has any right, title and interest over the suit land? 7. Whether the defendant is the licensee under the plaintiff in respect of the suit land? 8. Whether the plaintiff is entitled for a decree for recovery of possession of the suit premises by evicting the defendants there from? 9. Whether the plaintiff is entitled for any other relief or reliefs? 18. In support of the case plaintiff has examined one witness Sushant Kumar Mandal as P.W.-1. Exhibit-1 is the certified copy of Khatiyan of Khata No. 776 Exhibit-2 is the C.C. of School Certificate (with objection) Exhibit-3 is the C.C. of Voter List of 1975 (with objection) Exhibit-3/a is the C.C. of Voter list of 1980 (with objection) Exhibit-4 is the C.C. of Ration Card (with objection) Exhibit-5 is the C.C. of Power of Attorney dated 19.11.1988 (with objection) Exhibit-6 is the C.C. of judgment of T.S. No. 37/1993 Exhibit-7 is the C.C. of Decree of T.S. No. 37/1993 Exhibit-8 is the C.C. of Judgment of T.S. No. 01/1997 Exhibit-9 is the C.C. of Deposition of S.K. Das in T.S. No. 01/1997 Defendant in support of his case adduced himself as D.W. 1. No documentary evidence was filed on behalf of the defendants. The learned Trial Court discussed the evidence of P.W. and recorded as under:- “P.W. 1 in examination in chief stated in the line of his pleading. In his cross examination he stated that he is plaintiff’s Power of Attorney holder. In para 87 of his cross examination he stated that he met Gokul Chandra Das in the year 1962 and Gokul Chandra Das use to reside with his mother Biroja Bala Das as her adoptive son. In para 96 of his cross examination ( 2025:JHHC:17467 ) 9 he stated that Biroja Bala Das permitted Suresh Chandra Das to live in her house.” The learned Trial Court discussed the evidence of D.W. 1 and recorded as under:- “D.W. 1 in examination in chief stated in the line of the pleading. In para 22 of his cross-examination he stated that in T.S. No. 01/1997 and T.S. No. 37/1993 on behalf of the plaintiff Sushant Kumar Mandal was present as a Attorney holder and in both cases he considered the suit and raised no objection. Further in his cross examination he admitted that Gokul Chandra Das is a foster son of Parwati Kumar Das and Biroja Bala Das.” 19. The learned Trial Court discussed the Issue No. I, II, III, IV and V against the defendants and in favour of the plaintiff. The learned Trial Court while discussing Issue No. VI has given the finding which is as under: - “ Whether the plaintiff has any right, title and interest over the suit land. It is admitted fact of both the parties that earlier a Probate Case No 105/93 had been filed by late Suresh Chandra Das father of the defendants before the learned court of District Judge, at Jamshedpur, which was converted as T. S. 01/1997 which was dismissed by the learned District Judge-1 Jamshedpur on 12th March 2014, which is marked as exhibit-8. Another T. S. 37/1993 had been filed by the late Suresh Chandra Das father of the defendants before the learned court of Sub-Judge at Jamshedpur, which was dismissed on 28th July 2011 by the learned Court of Sub-Judge-V, which is marked as exhibit-6. In a suit title of the plaintiff is disputed eviction suit will not lie rather declaratory suit will lie. Title of the parties cannot be decided in this eviction suit. It is beyond the jurisdiction of the court. Hence, this issue is decided negative against the parties.” 20. While discussing the issues VII and VIII, the learned Trial Court has given the finding in paragraph 9 and 10 which is as under:- “Paragraph 9……………… Exhibit 5 is the C.C. of Power of Attorney dated 19.11.1988 (with objection to para 21-22 of his cross-examination D.W. 1 admitted that regarding the disputed land his father filed a T.S. No. 37 of 1993 and in T.S. No. 01/1997 and after the death of his father he substituted his name as a party in both cases and in both cases Sushanta Kumar appeared ( 2025:JHHC:17467 ) 10 on behalf of the plaintiff being a Attorney holder and he had not raised objection in the said cases. From the above discussion In this case for determining the landlord it is found incidentally that plaintiff is the owner. Paragraph 10………….. Plaintiff himself has not been examined as a witness in the instant suit but there is explanation available in the case record as P.W. 1 Sushant Kumar Mandal who is the Attorney Holder of the plaintiff in para 66 stated that the plaintiff is alive but he is medically unfit. A perusal of the witness of the defendant himself as D.W. 1 in para 22 of his cross examination he admitted that in T.S. No. 01/1997 and T.S. No. 37/1993 Sushant Kumar Mandal was present on behalf of the plaintiff as a Attorney Holder and in both cases he contested the suit but did not raise objection. In para 41 of the written statement defendants admitted that their father Suresh Chandra Das died in the year 2000. Plaintiff claimed that after the death of Suresh Chandra Das, leave and licence granted to him will automatically be revoked. Both the defendants have not raised any independent status over the suit premises rather they are claiming status from the side of their father Late Suresh Chandra Das. From perusal of exhibits discussed above prima facie plaintiff appears to be the owner. Hence these issue Nos. VII and VIII are decided against the defendants and in favour of the plaintiff.” 21. The Issue No. IX was not pressed by either party. 22. The learned Trial Court after discussing all the issues ordered as under:- “ That the suit be and same is decreed on contest but without cost. Plaintiff is entitled for recovery of possession of said suit premises from defendants. The defendants are directed to vacate the possession of said suit premises and handed over the vacant possession of the same to the plaintiff within 60 days of this order, failing which the plaintiff will be empowered to get vacated the same through process of law. Let the formal decree be drawn accordingly.” Point of determination framed by learned 1st appellate court. 23. The learned 1st appellate court framed the dominant question involved in the case and recorded in paragraph 12 of the judgment as –“The dominant question for consideration before this court as per the competence of the power of attorney holder to bring the ( 2025:JHHC:17467 ) 11 suit and to depose as a witness on behalf of Gokul Chandra Das” and in that connection observed as under:- “12. The dominant question for consideration before this court as per the competence of the power of attorney holder to bring the suit and to depose as a witness on behalf of Gokul Chandra Das The question arose as to whether Gokul Chandra Das was having any capacity to bring the suit for eviction of the defendants who are the near relative of the recorded owner and that plaintiff Gokul Chandra Das was not the adopted son of Parwati Kumar Das and Biroja Bala Das. These are two vital questions for adjudication. Incidental to this question comes up the capacity of the defendant appellant to possess the suit premises. 24. The learned 1st Appellate Court recorded its findings at Para 13 to 18 of the Impugned Judgement after considering the provision of Order III Rule 1 of the C.P.C. held that the suit was maintainable and that the plaintiff/respondent was the adopted son of Parwati Kumar Das and Biroja Bala Das- the original owner of the suit property. The findings of the 1st appellate court are quoted as under: “13. For discussing these questions first of all reference of Order III of the CPC is made where Rule 1 prescribes that the appearance of a person can be made by a recognized agent or by the pleader In this case the suit on behalf of the Gokul Chandra Das has been brought by his registered power of attorney holder. It is true that original power of attorney has not been exhibited in this case nor the certified copy obtained from the Registration Oflice has been marked as Exhibit but it is equally true that power of attorney was exhibited in another case which was between the same parties and certified copy of the said exhibit was obtained which has been filed before this court and was marked as Ext. 5. To my considered view the fact that there was a registered power of attorney is not in dispute and the fact that document which has been brought on record was certified copy of the said registered power of attorney is also not in dispute. Whether the certified copy of an exhibit can be ( 2025:JHHC:17467 ) 12 taken on record or not is the only dispute which was raised by the appellant. If the evidence of the appellant is looked into he admits that in the two previous proceedings i.e. in two Title Suits one converted from the Probate case after its became contentious, it was this power of attorney holder Sushanta Kumar Mandal who was prosecuting the case on behalf of the sepresent plaintiff Gokul Chandra Das and on the basis of the defence raised by Gokol Chandra Das through his power of attorney holder, both the suits of the appellant are for cancellation of the sale deed and the other for obtaining missed. Hence the capacity of the present power of attorney holder Sushanta Kumar Mandal to prosecute the case by virtue of Ext. 5 cannot be disputed and the law also does not prohibit such person to prosecute the case and depose on behalf of the principal. It is also important to mention that the suit itself was brought by Sushanta Kumar Mandal on the basis of the power of attorney and therefore, he was the original plaintiff who was prosecuting the case for his principal under the authority of his principal. His competence would have been questioned but his capacity to prosecute the same cannot be questioned on the basis of power of attorney which was a registered document. Thus, the first objection raised by the appellant with regard to want of competence of Sushanta Kumar Mandal to prosecute the case on behalf of Gokul Chandra Das does not have any merit and the same is accordingly decided in favour of the respondent and against the appellant/defendant and the issue which was connected to this question was issue No. (1) with regards to maintainability of the suit and the finding of the court below on the said issue is affirmed. 14. Coming on the dominant question as to whether Gokul Chandra Das had any capacity to bring a suit for ejectment/eviction against the defendant claiming to be the licencee. This question is co-related or incidental question as to whether the Gokul Chandra Das is legal class-1 heirs of the admitted recorded owner Parwati Kumar Das and Biroja Bala Das. Gokul Chandra Das in this case claims that he is the adopted son of Parwati Kumar Das and Biroja Bala Das and apart the oral testimony of the power of attorney holder Ext. 2 and Ext. 3 has been brought on the record where as far in the year 1949 and thereafter the status of the plaintiff Gokul ( 2025:JHHC:17467 ) 13 Chandra Das is shown to be that of the son of Biroja Bala Das and Parwati Kumar Das. Apart oral denial by the defendant, there is nothing on the record to disprove this evidence brought on behalf of the plaintiff/respondent. On the other hand, the defendant appelalnt even admits that the plaintiff/respondent Gokul Chandra Das was residing with Parwati Kumar Das and Biroja Bala Das is therefore, sufficient 18 Sessin Pidence of adoption but the distinction has been sought to be brought that his capacity of residing was not as a son but was that of a foster son and not of the adopted son. Actual living of Gokul Chandra Das with Parwati Kumar it Singhs as his son is not in dispute, Gokul Chandra Das was treated as a son by Mum Parwati Kumar Das and Biroja Bala Das is also admitted. Only question which is disputed is the legal status as to whether he was adopted son or a foster son. Gokul Chandra Das claims himself to be the adopted son which is evidenced by Ext. 2 and 3 and there is no convincing evidence on behalf of the defendant/appellant to rebut this evidence which has come in form of Ext. 2 and 3 that Gokul Chandra Das was the adopted son of Parwati Kumar Das and to prove that Gokul Chandra Das was the foster son of Parwati Kumar Das. In the absence of any rebuttal and in view of the fact that this act of adoption took place in the year 1948 when Gokul Chandra Das was aged about 4 years and since then he is residing with his father Parwati Kumar Das is a fact which is not in dispute. These circumstances goes against the case of the defendant/appellant and supports the case of the plaitiff/respondent that the plaintiff/respondent was the adopted son of Parwati Kumar Das and Biroja Bala Das. Further this conduct is even supported by two previous judgments by the court of competent jurisdiction where capacity of Gokul Chandra Das was not questioned to contest the claim made by the present defendant/appellant or his predecessor in interest as son of Parwati Kumar Das and Biroja Bala Das. No suit has been brought by the defendant/appellant till date for declaration that Gokul Chandra Das is not the adopted son of Parwati Kumar Das and Biroja Bala Das. To my considered view this vital aspect of the case was rightly decided by the court below in holding that plaintiff was ( 2025:JHHC:17467 ) 14 competent to bring the suit as legal class-I heirs of Parwati Kumar Das and Biroja Bala Das. 15. Now, comes the question as to what was the status of the defendant in respect of the suit property. Admittedly, defendant/appellant was not the owner or legal class-1 heirs of the recorded owner nor the defendant has any superior claim than that of the present plaintiff respondent and hence apart the contention made by the plaintiff respondent that they were in permissive possession of the suit property no other plea can be held to be tenable. 16. Having discussed these aspects of the case, this court concludes that the finding given by the court below on issue no. (VI) (VII) and (VIII) was Tightly given. The plaintiff had right, title and interest over the suit property and that the defendant is a licensee under the plaintiff in respect of the suit property and that the plaintiff is entitled for a decree of recovery of possession of the suit premises after eviction the defendant therefrom. Issue no. (11) as to whether the plaintiff had a valid cause of action was also rightly decided by the court below and it is reiterated that plaintiff/respondent had a valid cause of action to proceed with the case. Issue no. (III) and (IV) appear to be co-related and was not pressed in course of hearing and the findings on the said issues remains untouched. 17. Coming on the issue no. (V) which is whether suit is barred by non- joinder of the necessary pirates, to my considered view the plea of the defendant that sister of the defendants were not impleaded as a party does not hold any merit as the defendant/appellant would also have filed an application under Order I Rule 10 CPC for getting them impleaded as a party if at all they considered that their sisters were necessary parties. Since it is the defendant appellant alone who was in possession of the suit property, hence plaintiff/respondent rightly considered that there was no necessity to implead the sister of the defendant/appellant as party to the suit and this issue was rightly decided by the court below. 18. Coming on the issue no. (IX). Since there is no prayer for just of equitable relief hence in the facts and circumstances of the case, this court also considers that no other just or equitable relief could have been granted to the plaintiff/respondent.” ( 2025:JHHC:17467 ) 15 Findings of this Court on the substantial question of law. 25. After hearing the learned counsel for the parties and considering the facts and circumstances of this case this court finds that Vide Exhibit-6 which was a judgment passed in the earlier Suit namely Title Suit No. 37 of 1993 with respect to the portion of the property which belonged to the original owner namely Biroja Bala Das. In the said case, the paragraph 12 of the judgement reveals that the Court found it necessary to enter into the dispute as to whether Gokul Chandra Das was the adopted son of Bijroja Bala Das and Parwati Kumar Das. Paragraph 12 of the aforesaid judgment is quoted as under: - “ 12. For deciding the present issue it is very much and essential to reach to a conclusion whether the defendant no.1 is adopted son of Biroja Bala Das or not? Admittedly, the original plaintiff was own brother of Biroja Bala Das and as per the case of the plaintiff defendant no. was brought up and maintained by this Biroja Bala Das in her lifetime. It is the case of the defendants that defendant no.1 was not merely brought up and maintained by Biroja Bala Das rather, she adopted defendant no.1 as her son. In support of the story on adoption defendants have filed and exhibited several documents. Ext-A is certificate issued by Vivekanand Middle School It is written in the certificate that Gokul Chandra Das son of late Parboti Kumar Das was admitted in that school in Class I in the year 1949 and he was admitted there by his father PK. Das. This Pk Das is none other than the husband of Biroja Hala Das. Defendants have also filed certified copy of voter list of 1975 and 1980. Its perusal indicates that defendant no.1 is son of P.K. Das. In the voter list of 1975 (Ext. C) the name of Biroja Bala Das is also mentioned before the name of Gokul Chandra Das at Serial No. 1184. Defendants have also filed ration card (Ext.B). Its perusal also shows that defendant no.1 is son of late P.K. Das. The learned counsel for the plaintiffs submitted that Ext.A produced by the defendants refers to the date of birth of Gokul Chandra Das in the admission register. The admission register has not been brought for evidence in the suit. He has also submitted that this certificate has ( 2025:JHHC:17467 ) 16 been given out of his own accord and the same has not been proved on bringing any record of school and obviously this certificate is not a public document and as such no reliance can be placed on the contents of the certificate. The learned counsel has further submitted that Ext. B is Ration Card in which name of the defendant no. 1 and his wife finds place, but name of Biroja Bala Das is missing from the ration card. The learned counsel has further submitted that in the written statement filed in T.S. No. 1 of 1997 (Ext.7) it is mentioned in the Para-10 that plaintiff and his son forcibly driven out the defendant and his entire family from the premises of "Biroja Kutir” i.e. schedule land and the defendant after all took shelter in the District of 24 Parganas west Bengal. In the light of this discussion made by the defendant no. 1 in TS. No. 1/97 the documents i.e. the ration card becomes a suspicious document. He has further submitted that Ext. C and C/1 are also suspicious documents because no certificate has been affixed on these documents as required under Section 76 of the Evidence Act. He has argued that on the basis of these documents as referred above it does not establish that the defendant no. I was adopted son of Biroja Bala Das.” 26. The findings of the learned court in the said proceedings, exhibit-6 [Title Suit no. 37 of 1993] in paragraph 18 and 30 are quoted as under:- “18. The learned counsel for the plaintiffs has submitted that in order to prove the admission of defendant no.1 in Vivekanand School, defendants should have brought the school admission register on the record to establish the admission of defendant no.1 in that school and to show that Parboti Kumar Das was his father who admitted him in the school. But I do not agree with the submission of the learned counsel for the plaintiffs. If he has any doubt in the certificate issued by the School regarding the admission of defendant no.1 in the school by Parboti Kumar Das, he could have taken step for production of school admission register in the court to falsify the claim of defendants. It was not the duty of the defendant to call for school admission register. Hence. I come to this conclusion that there is no dispute that defendant no. 1 is adopted son of Biroja Bala Das and Parboti Kumar Das. 30. In the aforesaid circumstances I come to this conclusion that original plaintiff Suresh Chandra Das was ( 2025:JHHC:17467 ) 17 not entitle to get a decree for the reliefs sought for due to embargo created upon him by the Section 213 of the Indian Succession Act, 1925. His legal heirs who are presently prosecuting the c place of original plaintiffs are obviously also not entitled to get a decree due to embargo created by the Section 213 of the Indian Succession Act, 1925. 1come to this conclusion also that defendants have been able to establish that defendant no. 1 is adopted son of deceased Biroja Bala Das. It is settled principle of law that property cannot be kept in abeyance. Being the Class-1 heir of Biroja Bala the property left by her devolved upon the defendant no. I and he inherited the same being the Class-l legal heir of late Biroja Bala Das. I also come to the conclusion that defendant no. I was very much entitled to execute the power of attorney with respect to suit property in favour of defendant no.2 because he has not living at Jamshedpur, rather, he was living at 24-Pargana, West Bengal and it was inconvenient for him to manage the property. If the defendant no 2 executed the two sale deeds of the suit property in favour of defendant no.3, he has done no wrong. On the basis of power of attorney, defendant no 2 was very much entitled to do so. Hence, the plaintiff is not entitled to get a decree for declaration that defendant no 1 has got no right, title and interest to execute the general power of attorney, in favour of defendant no 2 and defendant no 2 has got no right, title and interest to execute the sale deed on the basis of power of attorney with respect to the suit property in favour of defendant no. 3. Accordingly, this issue is decided against the plaintiff and in favour of the defendant.” 27. This court finds that there was already a judicial pronouncement vide exhibit-6 with respect to the validity of adoption which has attained finality and therefore the argument of the learned counsel for the appellants that the executor of power of attorney was required to be examined on the point of adoption is misplaced. This Court is of the considered view that once there was a judicial pronouncement with regard to the validity of adoption, the exhibition of the judicial pronouncement, Exhibit-6, was sufficient for the purposes of establishing the factum of adoption. The fact remains that the judgement passed in the earlier suit, that ( 2025:JHHC:17467 ) 18 is, Title Suit no. 37 of 1993, the factum of adoption of the plaintiff of the present case was hotly contested and was held to be valid which has already attained finality as the second appeal has also been dismissed. Upon perusal of exhibit -6 it is apparent that the present plaintiff, the present defendant and also the power of attorney of the present plaintiff were party to the suit being Title Suit no. 37 of 1993. This court is of the considered view that the finding of valid adoption in Title Suit no. 37 of 1993 is binding upon the parties to the present suit also. 28. In the judgement relied upon by the learned counsel for the appellants in the case of S. Kesari Hanuman Goud versus Anjum Jehan reported in 2013 AIR SCW 3561 it has been held that power of attorney cannot depose on behalf of the principal in respect of the acts done by the principal and not by the power of attorney. Paragraph 13 of the aforesaid judgement is quoted as under: - 13. “It is settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III, Rules 1 and 2, CPC empower the holder of the power of attorney to "act" on behalf of the principal The word "acts" employed therein is confined only to "acts" done by the power of attorney holder, in exercise of the power granted to him by virtue of the instrument The term "acts", would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has preferred any "acts" in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined. (See Vidhyadhar v. Manikrao and Anr, AIR 1999 SC 1441 (1999 AIR SCW 1129), Janki Vashdeo Bhojwani v Indusind Bank Ltd (2005) 2 SCC 217 (AIR 2005 SC 439 2004 AIR SCW 7064), M/s. Shankar Finance and Investment v State of AP and Ors, AIR 2009 SC 422 (2008 AIR SCW 7493), and Man Kaur v. Hartar Singh Sangha (2010) 10 SCC 512) (2010 AIR SCW 6198).” (emphasis supplied) ( 2025:JHHC:17467 ) 19 29. Thus, the law is well settled that if the power of attorney holder has preferred any "acts" in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined. 30. In the present case, the appellants have argued that the power of attorney could not have deposed in place of the principal plaintiff with regards to the factum of adoption as the power of attorney was not in picture at the time of adoption. This court finds that on the face of exhibit-6 (judgement passed in Title Suit no. 37 of 1993 in which the plaintiff and defendant of the present case as well as the power of attorney representing the present plaintiff were parties), the factum of adoption was hotly contested and a finding was recorded that there was valid adoption of the plaintiff by the original owner of the property. This court is of the considered view that the said fact of valid adoption was not required to be proved again in this suit. The exhibit -6 has attained finality. 31. In view of the aforesaid findings, this court is of the considered view that there was no need for the plaintiff to again prove the factum of adoption and therefore non examination of the executor of the power of attorney (the plaintiff of the case) was not fatal. Accordingly, the sole substantial question of law is answered as follows: - The 1st appellate court has not committed any error by not drawing any adverse inference on account of non- examination of the principal (the plaintiff) and on account of the examination of the power of attorney holder instead of the plaintiff as witness as the factum of adoption which was based on the personal knowledge of the plaintiff was already proved in Title Suit no. 37 of 1993 vide exhibit-6. ( 2025:JHHC:17467 ) 20 The only grievance of the appellants during the course of argument is that the factum of adoption could not have been proved without examination of the principal (plaintiff). Therefore, the evidence deposed by the power of attorney of the plaintiff on behalf of the plaintiff was not hit by the provision of Order III Rule I CPC which empowers the holder of power of attorney to act on behalf of the principal when seen in the light of the aforesaid judgement cited by the appellants read with the exhibit-6. 32. Accordingly, the substantial question of law is answered against the appellants (defendants) and in favour of the respondents (plaintiffs). Consequently, this appeal is hereby dismissed. 33. Pending I.A., if any, is closed. 34. Let this judgment be communicated to the court concerned through FAX/e-mail. (Anubha Rawat Choudhary, J.) Binit