When the khasar entries are manipulated and doubtful - no adverse possession be claimed If the plaintiff’s possession itself originated in 1960­1961 it is difficult to appreciate how the Khasra entries in its name came to be made in the very same year. Section 115 of the Code provides that if the Tehsildar finds that a wrong or incorrect entry has been made in the land records prepared under Section 114 by an officer subordinate to him, he shall direct necessary changes to be made therein in red ink after making such enquiry from the person concerned as he may deem fit after due notice. The plaintiff led no evidence whatsoever when the application for correction in the khasra entry was made and that the original land owner was heard before the corrections were made. The entries in the name of the purchaser pursuant to the sale deed dated 11.10.1972 are in blue ink. The corrections in the khasra entry, the sheet anchor of the respondents claim therefore remains unexplained and doubtful.

When the khasar entries are manipulated and doubtful - no adverse possession be claimed

If the   plaintiff’s   possession   itself   originated   in   1960­1961   it   is difficult to appreciate how the Khasra entries in its name came to be made in the very same year.  
Section 115 of the Code provides that if the Tehsildar finds that a wrong or incorrect entry has
been made in the land records prepared under Section 114 by an officer subordinate to him, he shall direct necessary changes to be made therein in red ink  after making such enquiry from the person concerned as he may deem fit after due notice.   
The plaintiff  led   no   evidence   whatsoever   when   the   application  for correction in the khasra entry was made and that the original land owner was heard before the corrections were made. 
The entries in the name of the purchaser pursuant to the sale deed dated 11.10.1972 are in blue ink. 
The corrections in the khasra entry,   the   sheet   anchor   of   the   respondents   claim   therefore remains unexplained and doubtful.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 1090 OF 2008
BRIJESH KUMAR AND ANOTHER   ...APPELLANT(S)
VERSUS
SHARDABAI (DEAD) BY LRS. AND OTHERS    ...RESPONDENT(S)
WITH
CIVIL APPEAL NO(s). 1091 OF 2008
RAMAN LAL AND OTHERS ...APPELLANT(S)
VERSUS
BHAGIRATH (DEAD) THR. LRS.
AND OTHERS                ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The   appellants   are   aggrieved   by   the   order   allowing   the
plaintiff’s second appeal. The High Court reversed the order of
the First Appellate Court and restored the order of the Trial Court
decreeing the plaintiff’s suit for adverse possession.
1
2. The   suit   lands   comprise   of   4   out   of   6   Biswas   of   land
situated in Survey No. 493 of Patwari Halka No.76 at VillagePurani Chhabani, Guna.   The Original land owners were Mool Chand and Kashi Ram. The suit lands were sold to defendant
no.9 Urmila Devi by registered sale deed dated 11.10.1972. By
two separate registered sale deeds dated 22.08.1989 she sold an
area of 3414.4 square feet each to the appellants in both the
appeals.  Possession was handed over and constructions raised
by them. The plaintiff Matadin then filed Suit No. 45­A/1995 on
28.08.1990   claiming   adverse   possession   over   the   suit   lands
relying on Khasra entries for 1960­1961. The plaintiff also sought
a declaration of nullity against the sale deeds executed by the
original land owners and subsequent thereto. The sole plaintiff
Matadin expired on 26.05.1994.  An amendment application was
subsequently filed by his legal heirs on 21.04.1995 contending
that Matadin had come in possession of the suit lands after the
original land owners Moolchand and Kashi Ram had failed to
return his bullocks and agricultural implements.  The Civil Judge
Class I, Guna decreed the suit holding that the plaintiff had
perfected   his   title   by   continuous,   hostile   and   uninterrupted
possession for more than 12 years adverse to that of the original
2
land owners, and that the sale deeds were a nullity. Regular Civil
Appeal 19­A of 1996 preferred by the appellants was allowed
holding   that   the   Trial   court   had   overlooked   documentary
evidence   on   record   to   arrive   at   an   erroneous   conclusion   of
adverse possession on basis of oral evidence only. The second
appeal   by   the   plaintiff   was   subsequently   allowed   by   the
impugned order holding that the conclusions of the first appellate
court   were   erroneous,   restoring   the   order   decreeing   the   suit.
Thus, the present appeal.
3. Shri Manoj Prasad, learned senior counsel appearing for the
appellants,   submitted   that   the   findings   of   facts   by   the   first
appellate court are final. The High Court in a second appeal
ought not to have reappraised the evidence to arrive at a different
conclusion, without any finding of perversity.  The plaintiff never
acquired title by adverse possession as the original owner sold
the  lands to Urmila  Devi before expiry of twelve years.   The
purchaser   had   come   into   possession,   raised   certain
constructions, and resold part of the lands to the appellants who
consequently came into possession also. The original owners had
3
sought possession from the plaintiff in 1963­1964 also which was
declined.   The   plaintiff   never   established   the   origin   of   his
possession. The amendment of the plaint was an afterthought.
The   Khasra   entries   for   1969­1973   show   Urmila   Devi   in
possession of the lands.  In 1974­1978, the Khasra entries again
show Urmila Devi as the landlord.  The Khasra entries for 1960­
1961 and 1974­1978 showing possession of the plaintiff were
interpolations in red color ink, while the entries in the name of
Urmila Devi after purchase were made in blue color ink.  Hitesh
Kumar and Hemraj, the son and  nephew respectively, of the
plaintiff were clerks in the collectorate. They were suspended for
making   false   entries,   followed   by   departmental   enquiry   and
criminal prosecution. The Court Commissioner had also reported
possession having been transferred pursuant to the sale deed.
The   plaintiff   had   filed   an   objection   after   which   the   Court
Commissioner had again inspected the disputed land and filed
further report in favour of the appellants.  All these have not at
all been considered by the High Court.  Reliance was placed on
M.  Venkatesh  &  Ors.  vs.  Bangalore  Development  Authority
& Ors., (2015) 17 SCC 1, to contend that the adverse possession
4
could   be   proved   only   when   possession   was   peaceful,   open,
continuous and hostile.
4. Shri N.K. Jain, learned senior counsel, adopted the same
arguments on behalf of the appellants in Civil Appeal No. 1091 of
2008.
5. Shri   Puneet   Jain,   learned   counsel   for   the   respondents,
submitted that the plea of adverse possession was taken in the
original plaint. No new fact was sought to be introduced by way
of amendment. Relying on Section 117 of the Madhya Pradesh
Land Revenue Code (hereinafter referred to as the “Code”), it was
submitted   that   there   is   a   presumption   with   regard   to   the
correctness of the Khasra entries regarding possession of the
plaintiff. It therefore establishes the foundation of a claim for
adverse possession.  At no point of time, the original land owner
filed any application for correction under Section 116 of the Code
raising any dispute. The finding of the appellate court with regard
to manipulations in the Khasra entries, no more survive after
their exoneration in the departmental proceedings and acquittal
in   the   criminal   case.   The   plaintiff   was   in   continuous
5
uninterrupted   possession,   for   over   12   years,   hostile   to   the
original land owner.       The plaintiff was never dispossessed in
1972 after any sale. Mere execution of a sale deed does not
tantamount to dispossession.  The claim for possession stated to
have been reiterated in 1963­1964 by the original land owner
confirms the continuous uninterrupted hostile possession of the
plaintiff. Reliance was placed on  Dagabai  Fakirmahomed  vs.
Sakharam   Gavaji   &   Ors.,   AIR   1948   BOM   149,  Wontakal
Yalpi   Chenabasavana   Gowd   vs.   Rao   Bahadur   Y.
Mahabaleshwarappa   &   Ors.,   AIR   1954   SC   337,  M.V.S.
Manikayala  Rao  vs.  M.  Narasimhaswami  &  Ors., AIR 1966
SC   470,   to   submit   that   the   onus   lay   on   the   defendants   to
establish that the possession of the plaintiff was interrupted at
any point of time, to defeat the claim for adverse possession and
which they failed to do.
6. We   have   considered   the   submissions   on   behalf   of   the
parties.  The plaintiff in a suit filed in 1990, asserted possession
of the lands for past 30 years prior to the filing of the suit, relying
on the Khasra entries for 1960­1961 as the foundation of the
6
claim to adverse possession. The nature and origin of the claim
for possession was absent in the pleadings. In his evidence the
respondent deposed that since the original land owner had failed
to return his bullocks and agricultural equipments borrowed in
1958­1959, he had taken possession of the lands in 1960­1961.
The original plaintiff expired on 26.05.1994. The respondents,
who are his legal heirs, then filed an application on 21.04.1995
to amend the pleadings to bring it in accord with the evidence. If
the   plaintiff’s   possession   itself   originated   in   1960­1961   it   is
difficult to appreciate how the Khasra entries in its name came to
be made in the very same year.  Section 115 of the Code provides
that if the Tehsildar finds that a wrong or incorrect entry has
been made in the land records prepared under Section 114 by an
officer subordinate to him, he shall direct necessary changes to
be made therein in red ink  after making such enquiry from the
person concerned as he may deem fit after due notice.   The
plaintiff  led   no   evidence   whatsoever   when   the   application  for
correction in the khasra entry was made and that the original
land owner was heard before the corrections were made. The
entries in the name of the purchaser pursuant to the sale deed
dated 11.10.1972 are in blue ink. The corrections in the khasra
7
entry,   the   sheet   anchor   of   the   respondents   claim   therefore
remains unexplained and doubtful.
7.  At   this   stage,   it   is   crucial   to   notice   the   findings   of   the
appellate court that the son and nephew of the Plaintiff­Matadin
were working as clerks in the collectorate.  They were proceeded
against departmentally and in a criminal prosecution regarding
the   corrections   made   in   red   ink   in   the   Khasra   entries
incorporating   the   name   of   the   plaintiff   as   being   forged   and
fictitious.   The fact that they may have been acquitted in the
criminal prosecution on a benefit of doubt, or that exoneration
may have been ordered in the departmental proceeding based on
procedural irregularity, are not considered relevant as findings in
a civil suit are to be based on preponderance of probabilities
considering the nature of evidence available.
8. After purchase of the lands by Urmila Devi, her name was
entered in the Khasra as landlord during 1969­1973 along with
possession as also during 1974­1978.  Once it is concluded that
the red ink entries regarding corrections in the Khasra showing
8
possession of the plaintiff are suspicious, based on fraud and
forgery, the recordings in the name of the plaintiff are irrelevant.
The name of Urmila Devi has also been shown in the Khasra
entries for 1984­89 in blue ink.
9. The conclusion of the first appellate court with regard to
possession of the lands being with Urmila Devi after purchase
considered along with the report of the court commissioner, and
who   subsequently   sold   it   to   the   appellants   on   basis   of   a
registered sale deed, in our opinion called for no interference.
The finding that the appellants had admitted the possession of
the plaintiff­respondent on account of the failure of the original
land owners to return his bullocks and agricultural equipments
is held to be perverse. 
10. The plaintiff claimed adverse possession from 1960­1961.
The lands were sold to Urmila Devi before the expiry of 12 years
on 11.10.1972 and she was put in possession. The plaintiff’s
claim of uninterrupted possession for twelve years was therefore
unsustainable as completely devoid of substance.
9
11. The   High   Court   in   second   appeal   arrived   at   a   perverse
finding on the same evidence that Urmila Devi never acquired
possession   and   thus   the   plaintiff   had   established   adverse
possession   after   twelve   years.   The   report   of   the   court
commissioner also finds no discussion by the High Court. It also
failed  to   deal  with  the  suspicious  Khasra   entries   in   red  ink,
claimed by the plaintiff in proof of possession.  Likewise, it did
not consider that the origin of the claim of the plaintiff itself
never stood established in absence of necessary pleadings which
was sought to be introduced after the plaintiff’s evidence, as an
afterthought. 
12. At this juncture it is necessary to notice that in Civil Suit
No. 97­A of 1992 filed by the appellants in Civil Appeal No.1091
of 2008, and who had purchased the lands adjacent to the suit
lands from Urmila Devi, against Hemraj, the nephew of plaintiffMatadin, alleging encroachment of the lands purchased by him,
the suit was decreed, and the appeals preferred by Hemraj was
dismissed up to this court.  The conclusion of the High court that
there was no evidence with regard to the dispossession of the
10
respondent­plaintiff is clearly unsustainable as he never came
into possession in view of the clear finding with regard to fraud
and forgery in the Khasra entries.
13. Adverse possession is hostile possession by assertion of a
hostile title in denial of the title of the true owner as held in
M.Venkatesh  (supra).   The   respondent   had   failed   to   establish
peaceful,   open   and   continuous   possession   demonstrating   a
wrongful ouster of the rightful owner. It thus involved question of
facts and law.  The onus lay on the respondent to establish when
and how he came into possession, the nature of his possession,
the factum of possession known and hostile to the other parties,
continuous   possession   over   12   years   which   was   open   and
undisturbed.  The respondent was seeking to deny the rights of
the true owner. The onus therefore lay upon the respondent to
establish possession as a fact coupled with that it was open,
hostile and continuous to the knowledge of the true owner.  The
respondent­plaintiff failed to discharge the onus. Reference may
also be made to Chatti Konati Rao & Ors. vs. Palle Venkata
11
Subba Rao, (2010) 14 SCC 316, on adverse possession observing
as follows :
“15. Animus possidendi as is well known is a requisite
ingredient of adverse possession. Mere possession does
not ripen into possessory title until the possessor holds
the property adverse to the title of the true owner for
the   said   purpose.   The   person   who   claims   adverse
possession is required to establish the date on which
he   came   in   possession,   nature   of   possession,   the
factum of  possession,  knowledge  to   the  true owner,
duration of possession and that possession was open
and undisturbed. A person pleading adverse possession
has no equities in his favour as he is trying to defeat
the rights of the true owner and, hence, it is for him to
clearly   plead   and   establish   all   facts   necessary   to
establish adverse possession. The courts always take
unkind view towards statutes of limitation overriding
property rights. The plea of adverse possession is not a
pure question of law but a blended one of fact and law.”
14. In   view   of   our   conclusions,   the   precedents   cited   by   the
respondents do not merit consideration. The order of the High
Court is held to be unsustainable and is set aside. The order of
the first appellate court dated 08.08.1997 is restored and the suit
is dismissed.
12
15.  The appeals are allowed.
…………...................J.
[NAVIN SINHA]
…………...................J.
[INDIRA BANERJEE]
NEW DELHI
OCTOBER 01, 2019
13

When the agreement of sale was excuted in the capacity of power of attorney holder of his father alone even though in respect of joint property, it never operates as estoppel in the absence of specific agreement of sale and also in the absence of specific pleadings. Suit filed by the plaintiff for specific performance of an agreement of sale -suit scheduled property inherited by Princess Leelavathi, wife of late K. Basavaraja Urs - The suit scheduled property along with adjoining properties devolved on late K. Basavaraja Urs, father of K.B. Ramachandra Raj Urs, defendant No.1, in terms of section 15 of the Hindu Succession Act-On 24.4.1979, late K. Basavaraja Urs, represented by his son, i.e., defendant No.1 as power of attorney, entered into an agreement to sell with the plaintiffs for a consideration-After the demise of Princess Leelavathi, the suit property devolved on late K. Basavaraja Urs and defendant No.1. The 1st defendant has not conveyed his interest in the suit property in favour of plaintiffs. Defendants contended that no agreement was entered into with the plaintiffs. The suit is barred by time.- Trial court held that Defendant No.1 for himself and as a power of attorney holder of late K. Basavaraja Urs, executed the suit agreement and, therefore, he cannot be permitted to contend that he is not a party to the suit agreement in his individual capacity. - The High Court has found that defendant No.1 has executed the agreement not only as power of attorney for his father but also as a son of late K. Basavaraja Urs. -The High Court has also held that the property was held by Princess Leelavathi, wife of late K. Basavaraja Urs, and after her death, the suit property devolved on late K. Basavaraj Urs and defendant No.1 under section 15 of Hindu Succession Act, 1956.- Apex court held that A bare reading of the agreement described above makes it clear that agreement is between late K. Basavaraja Urs through power of attorney, K.B. Ramchandra Raj Urs. The “Vendors” is mentioned as K. Basavaraja Urs and not K.B. Ramchandra Raj Urs. Thus, it cannot be said that K.B. Ramchandra Raj Urs had executed the agreement on his behalf, concerning his share in the property. There is no whisper about the same in the agreement. doubt about it that defendant No.1 has acted as a power of attorney, but at the same time, did not act in his capacity as the owner of the property. The ownership of K.B. Ramchandra Raj Urs was known to the plaintiffs. In spite of that the plaintiffs have not set up the case to bind the share of K.B. Ramchandra Raj Urs. They have not pleaded in the plaint that K.B Ramchandra Raj Urs owned the property. There is no whisper as to the title of K.B. Ramchandra Raj Urs in the plaint. They needed to plead the facts to attract the plea of estoppel. That has not been done. Thus, the agreement which had been executed was not concerning share of defendant No.1, but of late K. Basavaraja Urs as his power of attorney.

When the agreement of sale was excuted in the capacity of power of attorney holder of his father alone even though in respect of joint property, it never operates as estoppel in the absence of  specific agreement  of sale and also in the absence of specific  pleadings.

Suit filed by the plaintiff for specific performance of an agreement of sale -suit scheduled property inherited by Princess Leelavathi, wife of late K. Basavaraja Urs - The suit scheduled property along with adjoining properties devolved on   late   K.   Basavaraja   Urs,   father   of   K.B.   Ramachandra   Raj   Urs, defendant No.1, in terms of section 15 of the Hindu Succession Act-On 24.4.1979, late K. Basavaraja Urs, represented by his son, i.e., defendant No.1 as power of attorney, entered into an agreement to sell with the plaintiffs for a consideration-After   the   demise   of   Princess Leelavathi, the suit property devolved on late K. Basavaraja Urs and
defendant No.1.  The 1st defendant has not conveyed his interest in the suit property in favour of plaintiffs.   Defendants contended that no agreement was entered into with the plaintiffs. The suit is barred by time.-
Trial court held that Defendant No.1 for himself and as a power of
attorney holder of late K. Basavaraja Urs, executed the suit agreement and, therefore, he cannot be permitted to contend that he is not a party to the suit agreement in his individual capacity.  - 
The High Court has found that defendant No.1 has executed the agreement not only as power of attorney for his father but also as a son   of   late   K.   Basavaraja   Urs. -The High Court has also held that the property was held by Princess Leelavathi, wife of late K. Basavaraja Urs, and after her death, the suit property devolved on late K. Basavaraj Urs and defendant No.1 under section 15 of Hindu Succession Act, 1956.-
Apex court held that A bare reading of the agreement described above makes it clear
that agreement is between late K. Basavaraja Urs through power of attorney, K.B. Ramchandra Raj Urs.  The “Vendors” is mentioned as K. Basavaraja Urs and not K.B. Ramchandra Raj Urs.  Thus, it cannot be said that K.B. Ramchandra Raj Urs had executed the agreement on his
behalf, concerning his share in the property.   There is no whisper about the same in the agreement.  doubt about it that defendant No.1 has acted as a power of attorney, but at the same time, did not act in his capacity as the owner of the property.  The ownership of K.B. Ramchandra Raj Urs was known to the plaintiffs. In spite of that the plaintiffs have not set up the case to bind the share of K.B. Ramchandra Raj Urs.  They have not pleaded in the plaint that K.B Ramchandra Raj Urs owned the property. There is no whisper as to the title of K.B. Ramchandra Raj Urs in the plaint. They needed to plead the facts to attract the plea of estoppel. That has not been done.  Thus, the agreement which had been executed was not concerning share of defendant No.1, but of late K. Basavaraja Urs as his power of attorney. 

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6049 OF 2007
SIRDAR K.B. RAMACHANDRA RAJ URS. (DEAD)
THROUGH LRS.                 ..APPELLANT(S)
VERSUS
SARAH C. URS & ORS.                         ..RESPONDENT(S)
WITH
CIVIL APPEAL NO.6050 OF 2007
J U D G M E N T
ARUN MISHRA, J.
1. The appeals are preferred against the judgment and order dated
13.8.2007 passed by the High Court, affirming the judgment and order
of the trial court decreeing the suit filed by the plaintiff for specific
performance of an agreement of sale. 
2. The plaintiffs filed the suit concerning suit scheduled property
inherited by Princess Leelavathi, wife of late K. Basavaraja Urs.  She
had adopted the defendant No.1 and died during the year 1958­59.
The suit scheduled property along with adjoining properties devolved
on   late   K.   Basavaraja   Urs,   father   of   K.B.   Ramachandra   Raj   Urs,
2
defendant No.1, in terms of section 15 of the Hindu Succession Act,
1956. The Plaintiff Nos.1 and 2 were the close relatives and friend of
the family of late K. Basavaraja Urs and the 2nd  plaintiff apart from
being a close relative and friend of Defendant No.1, was also a Legal
Advisor and Advocate of late K. Basavaraja Urs.
3. The property was let out to plaintiff No.2 in the year 1969 by late
K. Basavaraja Urs and defendant No.1.  Late K. Basavaraja Urs and
defendant No.1 sold the adjoining property to various persons vide
registered sale deeds.  Late K. Basavaraja Urs offered to sell the suit
scheduled property to the plaintiffs.  On 24.4.1979, late K. Basavaraja
Urs, represented by his son, i.e., defendant No.1 as power of attorney,
entered into an agreement to sell with the plaintiffs for a consideration
of Rs.1,50,000/­ out of which a sum of Rs.1,00,000/­ was received on
the   same   day.   The   defendant   No.1   agreed   to   obtain   a   clearance
certificate under section 230­A of the Income Tax Act as also under the
provisions of the Urban Land Ceiling Act.  The plaintiffs continued to
have   the   possession   of   suit   property   in   part   performance   of   the
agreement dated 24.04.1979 and stopped paying rent.
4. The defendant No.1 always ensured the plaintiffs to execute the
registered   sale   deed   in   terms   of   suit   agreement after   obtaining   a
clearance certificate from the Income Tax Department and under the
3
Urban Land Ceiling Act. On 1.6.1993, defendant No.1 received the
balance   sale   consideration   of   Rs.50,000/­   from   2nd  plaintiff   and
executed   a   stamped   receipt   in   favour   of   the   plaintiffs   with   an
undertaking to execute the deed of conveyance.
5. The defendant No.1, made the correspondence with the Income
Tax Department to obtain the Income Tax clearance. However, the
need   to   seek   permission   under   the   Urban   Land   Ceiling   Authority
vanished as per the decision of this Court concerning section 27 of the
said Act as defendant No.1 was postponing to execute the registered
sale deed on one pretext or the other.  A legal notice dated 5.6.1990
was   served,   and   after   that,   the   suit   had   been   filed   on   19.9.1990
seeking specific performance.
6. Defendant Nos.1, 2, and 4 in their written statements contended
that the 2nd plaintiff claimed to be a close relative of late K. Basavaraja
Urs.   He was his lawyer and self­assumed trustee. He obtained the
signatures   of   defendant   no.1   on   blank   papers,   which   has   been
misused by the 2nd plaintiff to create the agreement in question dated
24.4.1979.  It was assured that agreement was obtained as a collateral
document   to   secure   professional   charges,   which,   according   to   the
plaintiff, remained unpaid.
7. The defendants denied the receipt of the sale consideration on
4
24.4.1979   and   1.6.1993   and   also   the   subsequent   correspondence
between plaintiff No.2 and defendant No.1 and his Tax Consultant.
The 2nd  plaintiff was never permitted to put up construction on the
property   by   the   defendant   No.1.     After   the   demise   of   Princess
Leelavathi, the suit property devolved on late K. Basavaraja Urs and
defendant No.1.  The 1st defendant has not conveyed his interest in the
suit property in favour of plaintiffs.   Defendants contended that no
agreement was entered into with the plaintiffs. The suit is barred by
time.
8. Defendant No.5, in his written statement, took the plea that the
property being ancestral could not have been sold by defendant No.1 to
the detriment of the 5th defendant.  There was no legal necessity to sell
the property.
9. The trial court decreed the suit and recorded a finding that the
agreement has been executed on 24.4.1979. The defendant No.1 has
admitted his signatures on the suit agreement dated 24.4.1979 and
receipt dated 1.6.1983.  Defendant No.1 for himself and as a power of
attorney holder of late K. Basavaraja Urs, executed the suit agreement
and, therefore, he cannot be permitted to contend that he is not a
party to the suit agreement in his individual capacity.   They were
required to obtain an income tax clearance certificate and after that to
5
execute the registered sale deed, in which they have failed. Late K.
Basavaraja Urs owned vast landed and house properties at Bangalore
and   Mysore.   They   were   statutorily   bound   to   obtain   a   clearance
certificate from the Income Tax Department, and as they failed to
obtain it, they cannot be permitted to contend that suit is barred by
limitation. The High Court has affirmed the findings of the trial court. 
10. The High Court has disbelieved the case set up by defendant
No.1 that he had put his signatures on blank paper.  Plaintiff No.2 was
appointed   as   Judge   of   the   High   Court   during   September   1978;
therefore, on 24.4.1979, there was no fiduciary relationship between
them.  Plaintiffs have also produced the original stamped receipt dated
1.6.1983 (Exhibit P­19) admitting the receipt of remaining Rs.50,000
by defendants No.1 in which a sum of Rs.42,000 was paid in cash and
Rs.8,000   was   paid   by   cheque.   Defendant   No.1   had   admitted   his
signatures on Exh. P­19.  Defendant No.1 also admitted that he had
encashed the cheque. The plea of the 1st defendant is false and thus
cannot be accepted. The High Court has also referred to the order
passed by the Income Tax Appellate Tribunal wherein the claim of 2nd
plaintiff for exemption of Rs.50,000 under the Income Tax Act, paid to
1
st defendant towards the remaining sale consideration was allowed in
terms of section 54(F) of Income Tax Act.
6
11. The High Court has further found that the defendant has taken
an inconsistent and contrary stand. The defendant was visiting 2nd
plaintiff   all   along   insisting   on   obtaining   Income   Tax   Clearance
Certificate, which was postponed by the defendant No.1 on one pretext
or the other. The consideration has been paid under the agreement
dated 24.4.1979.
12. The High Court has found that defendant No.1 has executed the
agreement not only as power of attorney for his father but also as a
son   of   late   K.   Basavaraja   Urs.     The   stand   of   defendant   No.1   is
inconsistent.   Defendant No.1, allowed the plaintiffs to put up the
construction   in   the   suit   property.   Thus,   he   was   precluded   from
contending that he was not a party to the agreement.  The High Court
has also held that defendant No.1 has entered into the agreement and
the   entire   consideration   has   been   received,   it   is   not   considered
appropriate to grant the liquidated damage or penalty for the breach of
contract. The High Court has also held that the property was held by
Princess Leelavathi, wife of late K. Basavaraja Urs, and after her death,
the suit property devolved on late K. Basavaraj Urs and defendant No.1
under section 15 of Hindu Succession Act, 1956.
13. It was submitted by the learned counsel appearing on behalf of
the appellants that plaintiff No.2, M.P. Chandrakanta Raj Urs, was
7
elevated as Judge of the High Court.  Earlier, he was the Legal Advisor
of the late K. Basavaraja Urs. Thus, he could not have purchased the
property.   The agreement was not duly executed, and the suit was
barred by limitation.  The findings have been recorded that property
was inherited by K.B. Ram Chandra Raj Urs, i.e., defendant No. 1 from
Princess Leelavathi.  The agreement was with late K. Basavaraja Urs
and   not   with   defendant   No.1.     Defendant   No.1   did   not   execute
agreement of his share.  The Courts below erred in decreeing the suit
in toto. The suit could have been decreed to the extent of the shares of
the late K. Basavaraja Urs. 
14. Learned senior counsel appearing on behalf of the respondents
has supported the judgment and decree passed by the courts below.  It
is further submitted that no case for interference is made out in the
appeals given the concurrent findings of facts recorded by the courts
below. The appeals deserve to be dismissed.
15. We deem it appropriate to place on record that learned counsel
for the parties had taken time to file the compromise, if reached. We
have been informed that no compromise could be arrived at between
the parties.  Be that as it may.  We proceed to decide the appeals on
merits.
16. The   concurrent   findings   are   recorded   as   to   receipt   of
8
consideration and execution of the agreement to sell.   There is no
doubt about it that M.P. Chandrakanta Raj Urs (Plaintiff No.2) was
earlier a counsel and legal advisor to K. Basavaraja Urs, but when the
agreement had been executed, he was not a lawyer and became a
Judge   of   the   High   Court.   There   are   concurrent   findings   recorded
concerning the execution of the agreement, and it has been rightly
found established that signatures were not obtained on blank papers.
There   is   concurrent   finding   recorded   by   the   courts   below   that
consideration has been paid.  Thus, no case for interference is made
out in the aforesaid findings.
17. The courts below have found that correspondence was made by
defendants No.1 to obtain Income Tax clearance.  The suit has been
held not to be barred by limitation.   Given the facts and material
placed on record, no interference is called for with those findings also.
18. Learned senior counsel submitted that agreement to sell dated
24.4.1979 was between “late K. Basavaraja Urs and “Smt. Sarah C.
Urs', wife of M.P. Chandrakantaraj Urs and P. Chandrakantaraj Urs,
son of Late R. Putturaj Urs”. There was no dispute concerning ½ share
of K.B. Ram Chandra Raj Urs, which he had inherited from Princess
Leelavathi.  Thus, the suit could not have been decreed in toto; it could
have been decreed only to the extent of the share of late K. Basavaraja
9
Urs in the property.  In support of his contention, he has relied upon
the   decision   of   this   Court   in  R.S.   Madanappa   (deceased)   v.
Chandramma & Anr., AIR 1965 SC 1812.
19. The statement of plaintiff No. 2 has been pointed out, indicating
that he was aware that there were equal shares of K. Basavaraja Urs
and   K.   B.   Ramchandra   Raj   Urs   (defendant   No.1)   in   the   property.
Thus, plaintiff No.2 cannot plead that they were induced by erroneous
belief while entering into agreement, by the conduct of defendant No.1.
The   plea   of   estoppel   is,   thus,   not   attracted.     There   is   no   proper
foundation   in   the   pleading   regarding   the   plea   of   estoppel.   The
submission raised by learned counsel on behalf of respondent is that
defendant No.1 acted as power of attorney holder of his father and
received the sale consideration also.  As such he is bound by the plea
of estoppel to contend to the contrary.
20. It is necessary to consider the agreement.   The agreement is
extracted hereunder:
 “THIS AGREEMENT TO SELL is made on 24th day of April 1979
BETWEEN SRI K. BASAVARAJ URS, son of Late Sri Muddaraj
Urs, aged about 84 years, residing at 1-A (old No.5), Palace Road,
Bangalore – 560 001 (hereinafter referred to as the “VENDOR” which
expression shall unless the context otherwise required include the
heirs, assigns, administrators, successors and legal representatives of
the VENDOR) of the one part AND SMT. SARAH C. URS, the wife
of Sri M.P. Chandrakantaraj Urs and SRI P CHANDRAKANTARAJ
URS, son of late Sri R Putturaj Urs, residing at 1B Palace Road,
Bangalore – 560001, (hereinafter called the "PURCHASERS" which
expression shall unless the context otherwise requires to include their
heirs, assigns, administrators, successors and legal representatives of
10
the other part.
WHEREAS the VENDOR is the absolute owner of the property at
1B, Palace Road, Bangalore – 560001, an whereas the VENDOR is
desirous of disposing of the said house together with the plot of land,
fixtures, fittings, etc. of Rs.1,50,000/- (Rupees One Lakh Fifty
Thousand only) and the PURCHASERS are agreeable to buy the same
at the said price.
NOW THEREFORE, THIS DEED/ WITNESSETH AS FOLLOWS:
(1) That the VENDOR shall free from encumbrances the said property
situated at q-B Palace Road, Bangalore – 560 001, and the
PURCHASER shall buy the same at the said prices and on the
conditions hereinafter mentioned;
(2) That the said property consists of a single-storeyed house with the
following boundaries:-
On the EAST: No.1-C
On the WEST: Vacant land of VENDOR
On the NORTH: Storm Drain
On the SOUTH: By Common Road
(3) That the consideration of the house shall be payable as follows:-
A sum of Rs.1,00,000/- (Rupees One Lakh Only) paid on the date of
this agreement and the balance of Rs.5,40,000/- (Rupees Fifty
Thousand only payable on or before 23.4.1984.
(4) The VENDOR has delivered possession of the house, which is the
subject matter of this agreement to the PURCHASERS on this day.
(5) This agreement shall subject to permission, express or implied, being
granted under the Urban Land (Ceiling and Regulation) Act. In the
event such permission is not granted, the advance of Rs.1,00,000/-
(Rupees One Lakh only) paid shall be refunded to the PURCHASERS
by the VENDOR:
(6) That in the event of the sale not materializing through the default of
the VENDOR, the amount of Rs.1,00,000/- (Rupees One Lakh Only)
shall be refunded to the PURCHASERS with interest at 10 percent per
annum from the date hereof to the date of refund;
(7) That in the event of the sale not materializing through the default of
the PURCHASERS, 10 percent of the consideration money shall be
forfeited as earnest money and the balance refunded by the VENDOR
to the PURCHASERS out of the advance of Rs.1,00,000/- (Rupees
One lakh only) received by the former;
(8) VENDOR or his Power of Attorney shall cause all licences etc., to be
sanctioned for any additions or alterations to be made to the premise
before the actual transfer of title in terms of this agreement.
IN WITNESS where of the parties have set their hands the day and the
year first above mentioned.
Sd/-
SELLER
WITNESSES:
1. Sd/-
2. Sd/-
PURCHASERS”
11
A bare reading of the agreement described above makes it clear
that agreement is between late K. Basavaraja Urs through power of
attorney, K.B. Ramchandra Raj Urs.  The “Vendors” is mentioned as K.
Basavaraja Urs and not K.B. Ramchandra Raj Urs.  Thus, it cannot be
said that K.B. Ramchandra Raj Urs had executed the agreement on his
behalf, concerning his share in the property.   There is no whisper
about the same in the agreement.  The position mentioned above may
indicate that plaintiffs were misled by the Power of Attorney holder
that   only   late   K.   Basavaraja   Urs   was   the   exclusive   owner   of   the
property.  When we consider the statement of M.P Chandrakanta Raj
Urs (Plaintiff No.2), it clearly indicates that he was well aware of the
fact that Princess Leelavathi owned the property and upon her death
the property devolved upon, in equal shares and he was aware of the
other sale deeds executed (Exhs. P 43, P­44, P­45, P­46).  It is clear
that   plaintiff   No.2   was   aware   as   to   the   extant   title   of   K.B.   Ram
Chandra Raj Urs in the property and also the fact that it was a joint
family property.  In the plaint, the plaintiffs have not taken the plea of
estoppel, and now the case was set up that property had been sold by
defendant No.1 in his capacity without any such plea in the plaint.
Thus, plaintiff No.2 was well aware of the fact as to the title of K.B.
Ramchandra Raj Urs in the property and that late K. Basavaraja Urs
12
did not exclusively own the property.
21. The plea of estoppel in view the decision of this court in  R.S.
Madanappa (deceased) v. Chandramma & Anr., (supra) is not attracted,
in which the Court has held that estoppel by conduct could not arise
when a person concerned knew the right position relating to the title in
property in his possession, he could not plead that he was induced to
hold an erroneous belief because of the conduct of real owner of that
property.  This court has observed thus:
“6. We will consider the question of estoppel first. The conduct of the
first defendant from which the learned counsel wants us to draw the
inference of estoppel consists of her attitude when she was served
with a notice by the plaintiff, her general attitude respecting Bangalore
properties as expressed in the letter dated 17th January 1941, written
by her to her stepmother and the attestation by her and her husband on
3rd October 1944, of the will executed on 25th January 1941 by
Maddanappa. In the notice dated 26th January 1948, by the plaintiff’s
lawyer to the first defendant it was stated that the plaintiff and the first
defendant were joint owners of the suit properties which were in
possession of their father and requested for the cooperation of the first
defendant in order to effect the division of the properties. A copy of
this notice was sent to Maddanappa, and he sent a reply to it to the
plaintiff's lawyers. The first defendant, however, sent no reply at all.
We find it difficult to construe the conduct of the first defendant in not
replying to the notice and is not cooperating with the plaintiff in
instituting a suit for obtaining possession of the properties as
justifying the inference of estoppel. It does not mean that she
impliedly admitted that she had no interest in the properties. It is true
that in Ex. 15, which is a letter sent by her on 17th January 1941, to
her stepmother she has observed thus:
“I have no desire whatsoever in respect of the properties
which are at Bangalore. Everything belongs to my father. He has
the sole authority to do anything…. We give our consent to
anything done by our father. We will not do anything.”
But even these statements cannot assist the appellants because
admittedly, the father knew the true legal position. That is to
say; the father knew that these properties belonged to
Puttananjamma and that he had no authority to deal with these
properties. No doubt, in his written statement, Maddanappa had
13
set up a case that the properties belonged to him by virtue of the
declaration made by Puttananjamma at the time of her death, but
that case has been negatived by the courts below. The father’s
possession must, therefore, be deemed to have been, to his
knowledge, on behalf of the plaintiff and the first defendant.
There was thus no possibility of an erroneous belief about his
title being created in the mind of Maddanappa because of what
the first defendant had said in her letter to her stepmother.
7. Insofar as the attestation of the will is concerned, the appellants’
position is no better. This “will” purports to make a disposition of the
suit properties along with other properties by Maddanappa in favour
of Defendants 3 to 8. The attestation of the will by the first defendant
and her husband, would no doubt affix them with the knowledge of
what Maddanappa was doing, but it cannot operate as estoppel against
them and in favour of Defendants 3 to 8 or even in favour of
Maddanappa. The will could take effect only upon the death of
Maddanappa and, therefore, no interest in the property had at all
accrued to Defendants 3 to 8, even on the date of the suit. So far as
Maddanappa is concerned, he, as already stated, knew the true
position and, therefore, could not say that an erroneous belief about
his title to the properties was created in his mind by reason of the
conduct of the first defendant and her husband in attesting the
document. Apart from that, there is nothing on the record to show that
by reason of the conduct of the first defendant Maddanappa altered his
position to his disadvantage.
8. Mr. Venkatarangaiengar, however, says that subsequent to the
execution of the will, he had effected further improvements in the
properties and for this purpose, spent his own moneys. According to
him, he would not have done so in the absence of assurance like the
one given by the first defendant and her husband to the effect that they
had no objection to the disposition of the suit properties by him in any
way he chose to make it. The short answer to this is that Maddanappa,
on his own allegations, was not only in possession and enjoyment of
these properties ever since the death of Putananjamma but had made
improvements in the properties even before the execution of the will.
In these circumstances, it is clear that the provisions of Section 115 of
the Indian Evidence Act, which contain the law of estoppel by
representation, do not help him.”
22. Thus, it is clear that there was no possibility of erroneous beliefs
in the mind of the plaintiffs as to title position in the property.   No
doubt about it that defendant No.1 has acted as a power of attorney,
but at the same time, did not act in his capacity as the owner of the
property.  The ownership of K.B. Ramchandra Raj Urs was known to
14
the plaintiffs. In spite of that the plaintiffs have not set up the case to
bind the share of K.B. Ramchandra Raj Urs.  They have not pleaded in
the plaint that K.B Ramchandra Raj Urs owned the property. There is
no whisper as to the title of K.B. Ramchandra Raj Urs in the plaint.
They needed to plead the facts to attract the plea of estoppel. That has
not been done.  Thus, the agreement which had been executed was not
concerning share of defendant No.1, but of late K. Basavaraja Urs as
his power of attorney. 
23. In   view   of   the   agreement   and   the   admission   made   by   the
plaintiffs, we are of the opinion that it would be appropriate to modify
the decree passed by the courts below to the extent of 50 per cent of
the shares of the deceased late K. Basavaraja Urs and to set it aside
with respect to the remaining ½ share of K.B. Ramchandra Raj Urs
(defendant No.1) in the property, since the property devolved under
section 15 of the Hindu Succession Act.
24. Thus, we hold that the plaintiffs to be entitled only to the extent
of ½ share in the suit property. The decree to the remaining extent is
set   aside.     The   plaintiffs   would   not   be   entitled   to   refund   of   any
consideration as by now the worth of property has increased manifold.
25. We direct the trial court to divide the property in two equal
proportions and it be given to the parties.  Let the division be carried
15
out within four months by the Trial Court.  The appeals are allowed to
the extent mentioned above.  No costs.
.................................J.
               [ ARUN MISHRA ]
.................................J.
               [ S. ABDUL NAZEER ]
NEW DELHI;
OCTOBER 24, 2019.

absence of any credible or cogent ground for Re­call of the exparte judgment the ground urged that the Chartered Accountant was suffering from an advanced stage of cataract, and hence was constrained from informing his clients is again not worthy of credence. The dasti Notice was admittedly served on him on 13.12.2018 at his office, which was much prior to his surgery which he states took place on 04.01.2019. Mr. Narayan had sufficient time to inform the Applicant – Company of the proceedings, prior to his surgery. Furthermore, Mr. Narayan appeared before the Income Tax Authorities to represent the Applicant – Company and its sister concerns on various dates prior to his surgery i.e. on 14.12.2018, 21.12.2018, 28.12.2018 and 29.12.2018. 9 14. Keeping in view the above­mentioned facts and circumstances, this Court is satisfied that the Applicant – Company was duly served through their authorized representative, and were provided sufficient opportunities to appear before this Court, and contest the matter. The Applicant – Company chose to let the matter proceed exparte. The grounds for Re­call of the Judgment are devoid of any merit whatsoever

 absence of any credible or cogent ground for Re­call of the exparte judgment 

 the   ground   urged   that   the   Chartered Accountant   was   suffering   from   an   advanced   stage   of cataract,   and  hence   was  constrained  from  informing  his clients is again not worthy of credence. The dasti Notice was admittedly served on him on 13.12.2018 at his office, which was much prior to his surgery which he states took place on 04.01.2019. Mr. Narayan had sufficient time to inform the Applicant   –   Company   of   the   proceedings,   prior   to   his surgery.  Furthermore,   Mr.   Narayan   appeared   before   the Income   Tax   Authorities   to   represent   the   Applicant   – Company and its sister concerns on various dates prior to his surgery i.e. on 14.12.2018, 21.12.2018, 28.12.2018 and 29.12.2018. 9 14. Keeping   in   view   the   above­mentioned   facts   and circumstances, this Court is satisfied that the Applicant – Company   was   duly   served   through   their   authorized representative, and were provided sufficient opportunities to appear   before   this   Court,   and   contest   the   matter.   The Applicant – Company chose to let the matter proceed  exparte. The grounds for Re­call of the Judgment are devoid of any merit whatsoever

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
M.A. No. 814 of 2019
IN
CIVIL APPEAL NO. 2463 OF 2019
Principal Commissioner of
Income Tax (Central) ­ 1                  …Appellant
Versus
NRA Iron & Steel Pvt. Ltd.                …Respondent
    J U D G M E N T
INDU MALHOTRA, J.
1. The present Application has been filed for Re­call of the
Judgment dated 05.03.2019 passed by this Court in C.A.
No.   2463   of   2019,   on   the   ground   that   the   Applicant   –
Company was not served with the Notice of the SLP at the
registered office of the Company, nor was a copy of the SLP
1
served on the Applicant – Company. Consequentially, since
the Judgment was passed  ex­parte, the Applicants prayed
for Re­call of the Judgment and a de novo hearing.
2. The Applicants submit that the Court Notices were sent to
the   earlier   registered   office   address   of   the   Applicant   –
Company i.e. at 310, 3rd Floor, B­Block, International Trade
Tower, Nehru Place, New Delhi. However, on 19.05.2014,
the Applicant – Company changed its registered office to
211, Somdutt Chambers II, 9, Bhikaji Cama Place, New
Delhi – 110066.
Thereafter, on 23.01.2019, the registered office was
again   changed   to   1205,   Cabine   No.   1,   89   Hemkunt
Chambers, Nehru Place, New Delhi.
3. The Applicants submit that they learnt of the Judgment
dated 05.03.2019 passed by this Court from a news clipping
published   in   the   Economic   Times   on   07.03.2019.
Subsequently,   the   Application   for   re­call   was   filed   on
12.03.2019.
2
4. The Applicant – Company submits that on an inspection of
the   court   record,   they   learnt   that   the   Affidavit   of  dasti
service filed by the Revenue – Department on 19.12.2018,
showed   an   acknowledgment   receipt   by   Mr.   Sanjeeva
Narayan,   the   Chartered   Accountant   of   the   Applicant   –
Company on 13.12.2018.
5. The Applicant – Company placed on record the Affidavit of
Mr. Sanjeev Narayan – Chartered Accountant, wherein he
has stated that he was the authorized representative of the
Respondent – Company before the Income Tax Authorities
but was not engaged before the High Court, or the Supreme
Court. The Chartered Accountant further submits that he
had   received   service   on   13.12.2018   from   one   of   the
Inspectors of the Income Tax Department, but he bona fide
believed that the documents were “some Income Tax Return
documents from Income Tax Department.”
The   Chartered   Accountant   further   submits   that   he   was
suffering   from   an   advanced   stage   of   cataract,   and   had
3
undergone a surgery in both the eyes on 04.01.2019 and
23.01.2019 respectively.
6. The Applicant – Company during oral arguments submitted
that   Mr.   Sanjeev   Narayan   –   Chartered   Accountant   was
representing the Applicant – Company in all its cases, as
also the sister concerns including M/s. Tata Steel BSL Ltd.
(earlier known as Bhushan Steel Ltd.) before the Income Tax
Authorities,   and   continues   to   represent   the   Applicant   –
Company even as on date.
7. This   Court  vide  Order   dated   19.08.2019,   called   for   the
original record from the Income Tax Appellate Tribunal and
the Delhi High Court.
In the meanwhile, the Department was granted time to
file their objections.
8. The Department in the Counter Affidavit submitted that the
dasti Notice was duly served on Mr. Sanjeev Narayan at his
office   address,   in   his   capacity   as   the   authorized
representative of the Applicant – Company, who was holding
a Power of Attorney of the Assessee – Company for the A.Y.
2009 – 10. The Power of Attorney appoints all four partners
4
of   the   firm   i.e. Mr.   Mohan   Lal,   Advocate,   Mr.   Ashwani
Kumar,   Chartered   Accountant,   Mr.   Sanjeev   Narayan,
Chartered Accountant and Mr. Surender Kumar, FCA as
their   Counsel,   and   authorizes   them   to   represent   the
Applicant – Company at all stages of the proceedings. The
Power of Attorney executed by the Applicant – Company in
favour of Mr. Sanjeev Narayan was placed on record.
9. It was further submitted on behalf of the Revenue that even
though Mr. Sanjeev Narayan has stated that he underwent
the cataract surgery on 04.01.2019 and 23.01.2019, this
was much after the Notice had been served on 13.12.2018.
Hence, there was ample time for him to inform his clients of
the pendency of the proceedings.
10. It   was   further   submitted   that   Mr.   Sanjeev   Narayan   had
appeared before the Tax Authorities after the date of service
on 13.12.2018, and prior to his surgery, to represent the
Applicant – Company and its sister concerns on 14.12.2018,
21.12.2018, 28.12.2018 and 29.12.2018.
In these circumstances it was pointed out that there
was no merit in the contention raised by the Applicant –
5
Company, and hence no ground was made out to Re­call the
Judgment   and   Order   dated   05.03.2019   passed   by   this
Court.
11. We  have  heard  the  learned  Counsel  for  the  parties  and
perused the record.
This Court in C.A. No. 2463 of 2019, issued Notice to
the Assessee ­ Applicant vide Order dated 12.11.2018. Since
dasti service was effected on 13.12.2018 on the Applicant –
Company, the matter was listed on 02.01.2019. However,
none appeared on behalf of the Applicant – Company. The
Court   further   adjourned   the   matter   by   two   weeks,   and
posted the case on 18.01.2019, when it was ordered that in
case   the   Applicant   –   Company   chooses   not   to   enter
appearance, the matter would be proceeded  ex­parte. The
matter   was,   thereafter,   listed   on   23.01.2019,   when   the
following Order was passed:
“Notice   was   issued   in   the   matter   on
12.11.2018,  Office   report   dated   22.12.2018
indicated that notice was served upon the sole
Respondent but none had entered appearance.
By order dated 02.01.2019, last opportunity
was   given   to   the   Respondent   and   it   was
indicated that if the Respondent chose not to
6
enter   appearance,   the   matter   would   be
disposed   of   ex­parte.   Even   then   none   has
entered appearance. Having gone through the
matter, we give one more opportunity to the
Respondent   to   enter   appearance   and   make
submissions with respect to the merits of the
matter.  If the Respondent still chooses not to
appear, the matter shall definitely be decided
ex­parte.”
(emphasis supplied)
The   Applicant   –   Company   remained   unrepresented
despite   service   on   its   authorised   representative,   on
31.01.2019, and on 05.02.2019, when the matter was taken
up for final hearing, and judgment was reserved.
12. During   oral   hearing   on   the   Re­call   Application,   a
submission was made by the Counsel for the Applicant –
Company that Mr. Sanjeev Narayan was not the “principal
officer” of the Applicant – Company, and hence service could
not have been effected upon him.
Section 2(35) defines “principal officer” as follows :
“2. In this Act, unless the context otherwise
requires,—
(35) "principal officer", used with reference to a
local   authority   or   a   company   or   any   other
public body or any association of persons or
anybody of individuals, means—
 (a) the secretary, treasurer, manager or agent
of   the  authority,  company,   association   or
body, or
7
  (b)   any   person   connected   with   the
management   or   administration   of   the   local
authority, company, association or body upon
whom   the   Assessing   Officer   has   served   a
notice of his intention of treating him as the
principal officer thereof ;”
(emphasis supplied)
The term ‘agent’ would certainly include a power of
attorney holder. In State of Rajasthan v. Basant Nehata1
 this
Court held that :
“A   grant   of   power   of   attorney   is   essentially
governed by Chapter X of the Contract Act. By
reason of a deed of power of attorney, an agent
is formally appointed to act for the principal in
one transaction or a series of transactions or to
manage   the   affairs   of   the   principal   generally
conferring   necessary   authority   upon   another
person. A deed of power of attorney is executed
by the principal in favour of the agent.”
(emphasis supplied)
Mr. Sanjeev Narayan admittedly being the Power of Attorney
holder of the Applicant – M/s. NRA Iron & Steel Pvt. Ltd. for
the A.Y. 2009 – 10 was the agent of the Assesse – Company,
and hence Notice could be served on him as the agent of the
Assessee – Company in this case.
13. The ground taken by Mr. Sanjeev Narayan that even though
Notice was served on 13.12.2018, he assumed that they
1 2005 (12) SCC 77.
8
were   “some   Income   Tax   Return   Documents”   lacks
credibility.   It   is   difficult   to   accept   that   the   envelope
containing the dasti Notice from this Court was considered
to be “some Income Tax Return documents”. The deponent
does not at all disclose as to when the envelope containing
the dasti Notice was ever opened.
Furthermore,   the   ground   urged   that   the   Chartered
Accountant   was   suffering   from   an   advanced   stage   of
cataract,   and  hence   was  constrained  from  informing  his
clients is again not worthy of credence. The dasti Notice was
admittedly served on him on 13.12.2018 at his office, which
was much prior to his surgery which he states took place on
04.01.2019. Mr. Narayan had sufficient time to inform the
Applicant   –   Company   of   the   proceedings,   prior   to   his
surgery.
Furthermore,   Mr.   Narayan   appeared   before   the
Income   Tax   Authorities   to   represent   the   Applicant   –
Company and its sister concerns on various dates prior to
his surgery i.e. on 14.12.2018, 21.12.2018, 28.12.2018 and
29.12.2018.
9
14. Keeping   in   view   the   above­mentioned   facts   and
circumstances, this Court is satisfied that the Applicant –
Company   was   duly   served   through   their   authorized
representative, and were provided sufficient opportunities to
appear   before   this   Court,   and   contest   the   matter.   The
Applicant – Company chose to let the matter proceed  exparte. The grounds for Re­call of the Judgment are devoid of
any merit whatsoever.
15. The Applicant – Company having failed to make out any
credible or cogent ground for Re­call of the judgment dated
05.03.2019, the Application for Re­call is dismissed with no
order as to costs.
…...........................J.
(UDAY UMESH LALIT)
…..……………………J.
(INDU MALHOTRA)
New Delhi,
October 25, 2019
10

Greetings of Deepavali

                                    

Wishing you all a   happy and  colourfulDeepavali
God bless you all with great health, wealth and prosperty

                                         with regards
             

whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation.? - High court order quashing criminal proceedings are set aside. Apex court held that In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsels have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant, that such document itself is obtained under threat and coercion,it is a matter to be investigated. Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the Crl.A. @ SLP(Crl.)No.4294 of 2019 10 complaint and the serious allegations made against the 2 nd respondent, we are of the view that the High Court has committed error in quashing the proceedings. During the course of hearing, learned counsel for the appellant, brought to our notice provision/Section 114-A of the Indian Evidence Act, 1872. Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape. A reading of the aforesaid Section makes it clear that, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent. Whether in a given case power under Section 482 is to be exercised or not, depends on the contents of the complaint, and the material placed on record. In that view of the matter, we are of the view that it is a fit case to set aside Crl.A. @ SLP(Crl.)No.4294 of 2019 11 the order passed by the High Court and allow the investigating agency to proceed with the further investigation in accordance with law.

whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation.? - 
High court order quashing criminal proceedings are set aside.
Apex court held that 
In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsels have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant, that such document itself is obtained under threat and coercion,it is a matter to be investigated. Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the Crl.A. @ SLP(Crl.)No.4294 of 2019 10 complaint and the serious allegations made against the 2 nd respondent, we are of the view that the High Court has committed error in quashing the proceedings. During the course of hearing, learned counsel for the appellant, brought to our notice provision/Section 114-A of the Indian Evidence Act, 1872. Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape. A reading of the aforesaid Section makes it clear that, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent. 

Whether in a given case power under Section 482 is to be exercised or not, depends on the contents of the complaint, and the material placed on record. In that view of the matter, we are of the view that it is a fit case to set aside Crl.A. @ SLP(Crl.)No.4294 of 2019 11 the order passed by the High Court and allow the investigating agency to proceed with the further investigation in accordance with law.

Crl.A. @ SLP(Crl.)No.4294 of 2019
1
 REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1619 OF 2019
(Arising out of S.L.P.(Crl.)No.4294 of 2019)
Miss XYZ ...Appellant
Versus
State of Gujarat & Anr ...Respondents
J U D G M E N T
R.Subhash Reddy,J.
1. Leave granted.
2. This appeal is filed by the 2nd respondent in
R/Special Criminal Application No.9897 of 2017 filed
before the High Court of Gujarat, at Ahmedabad. By the
impugned order, High Court has allowed R/Special
Criminal Application by quashing FIR No. CR-I-60-2017
registered on the file of Mahila Police Station,
Ahmedabad City, District Ahmedabad.
Crl.A. @ SLP(Crl.)No.4294 of 2019
2
3. The appellant herein, is the informant in crime
registered in FIR No.CR-I-60-2017 on the file of
Mahila Police Station, Ahmedabad City. On her
complaint the aforesaid crime is registered against the
2
nd respondent for the alleged offence punishable under
Sections 376, 499 and 506(2) of the Indian Penal Code,
1860.
4. The complaint was filed with the following
averments:
She is a permanent resident of Jodhpur, Rajasthan
State and had come to Ahmedabad in Gujarat City for
employment and she met the 2nd respondent, who is the
Managing Director of the G.S.P. Crop Science Pvt. Ltd.
After conducting interview she was appointed as his
Personal Assistant in the month of November, 2014. When
the appellant was not well, the 2nd respondent started
visiting her residence and when she was in sleep, the
2
nd respondent has taken an inappropriate pictures of
her. When she was attending the office, the 2nd
respondent by showing her pictures, was blackmailing
her. When she visited Odhav, Kathwada and Nandesari,
Baroda on official work of the company, the 2nd
respondent used to take advantage of the situation when
the appellant was alone, and was blackmailing to make
Crl.A. @ SLP(Crl.)No.4294 of 2019
3
viral her pictures and to terminate her employment. As
the financial condition of the appellant was not
stable, she did not disclose this to anyone. In
December, 2014 the 2nd respondent took the appellant to
Baroda for some work, by threatening to publish her
nude pictures, committed rape on her. Even after
coming back to Ahmedabad, the 2nd respondent again took
her to Baroda on the pretext of some work and committed
rape by similar threats in the hotel. The 2nd
respondent was also visiting her rented premises at
Ahmedabad and used to commit rape on her under the
threat of termination of employment and publication of
her pictures. The 2nd respondent rented an apartment
at Adani Pratham in August, 2015. When the appellant
was residing in the said apartment,the 2nd respondent
used to come to the said apartment and was demanding
sexual favours. As she was fed up with the
exploitation by the 2nd respondent, she vacated the
rental premises in June, 2016. In view of serious
threat by the 2nd respondent to her life, she left for
Jodhpur and her marriage was fixed with one Mr.Shoukin
Malik who is the resident of Badi Sadri, Rajasthan in
the month of December, 2016. The 2nd respondent having
come to know about the marriage of the appellant with
Crl.A. @ SLP(Crl.)No.4294 of 2019
4
Shoukin Malik, he contacted Mr.Shoukin Malik on
telephone and informed him that the appellant is not of
good character, she had physical relationship with him
and with other boys. As Mr.Shoukin Malik refused to
meet the 2nd respondent, the 2nd respondent sent a cover
to the residence of Shoukin Malik containing her
nude/inappropriate pictures.
5. In view of such allegations as referred above made
in the complaint, a case is registered against the 2nd
respondent for the alleged offence under Sections 376,
499 and 506(2) of IPC.
6. When the complaint is under investigation, the 2nd
respondent has filed R/Special Criminal Application
No.9897 of 2017 before the High Court of Gujarat
seeking quashing of FIR itself and also further
consequential steps taken pursuant to the registration
of crime.
7. Primarily, it was the case of the 2nd respondent
before the High Court that there was absolutely no
truth in the allegation of rape as alleged by the
appellant and it was only consensual sex between the
parties. It is further alleged that in view of the
allegations made by the appellant, a settlement is
purported to have been arrived at, between them in the
Crl.A. @ SLP(Crl.)No.4294 of 2019
5
month of July, 2016. A written agreement was also
entered into and the same is signed by the parties. It
is stated in the agreement that the dispute between the
parties is settled and the 2nd respondent has allegedly
paid a huge amount to the appellant. It is further the
case of the 2nd respondent that whatever the electronic
and other materials lying with the parties were agreed
to be destroyed. Further it was the case of the 2nd
respondent that the alleged telephonic calls made by
the 2nd respondent to Mr. Shoukin Malik of
Rajasthan was absolutely false and baseless. Pleading
that the complaint filed and investigation taken up is
a gross abuse of process, the 2nd respondent has sought
quashing of the proceedings.
8. By referring to the rival contentions of the
parties and the material on record, the High Court has
recorded a finding that the case of the 2nd respondent
falls under Exceptions 5 and 7 as carved out in the
judgment of this Court in State of Haryana vs.
Bhajanlal & Ors.
1 and further the allegations and facts
as mentioned in the FIR, appear to be improbable and
the same is malicious prosecution, quashed the
proceedings registered against the 2nd respondent.
1 AIR 1992 SC 604
Crl.A. @ SLP(Crl.)No.4294 of 2019
6
9. We have heard Sri Amit Anand Tiwari, learned
counsel for the appellant, Ms. Deepanwita Priyanka,
learned counsel for the State and Sri Mukul Rohatgi,
learned senior counsel for 2nd respondent.
10. Mainly, it is contended by the learned counsel for
the appellant that the High Court has passed the
impugned order by exceeding the scope of power
conferred under Section 482 CrPC. In view of the
serious allegations made against the 2nd respondent, the
High Court should not have exercised power under
Section 482 of the CrPC to scuttle the investigation.
It is submitted that the High Court has committed error
in summoning the Police Inspector, and on relying on
such statement, for quashing the FIR. It is stated
that the alleged settlement was under the guise of
threat and coercion by the 2nd respondent, and it is not
entered into by the appellant with her free will and
consent. It is stated that the 2nd respondent misused
the photographs taken by him, and repeatedly used the
same to blackmail her, to secure sexual favours from
the appellant. It is contended that the 2nd respondent
taking advantage of his position as a Managing Director
of the Company, has exploited the appellant and
committed rape on her at her residence and in the
Crl.A. @ SLP(Crl.)No.4294 of 2019
7
apartment secured by the 2nd respondent and also during
her tours to Baroda. It is submitted that it is not
open for the High Court to make a roving inquiry, while
considering the application filed under Section 482
CrPC.
11. Learned counsel for the first respondent-State has
submitted that the Investigating Officer made an
attempt to secure data from the service providers of
the mobile phones, but the same was not provided. In
the meantime, in view of interim orders passed by the
High Court, further investigation was not made.
12. Sri Mukul Rohatgi learned senior counsel appearing
for the 2nd respondent, by taking us through the
settlement documents arrived, between the parties, and
other material placed on record, has submitted that
there is absolutely no basis for the allegation of rape
by the 2nd respondent, and it was only consensual sex
between the parties. It is submitted that having
regard to the allegations made, parties arrived at a
settlement and entered into a written agreement in the
month of July, 2016. As the appellant is not disputing
the said documents, the allegation of rape is false.
It is submitted that parties were in consensual sex for
several years and in absence of any allegation against
Crl.A. @ SLP(Crl.)No.4294 of 2019
8
the 2nd respondent of committing rape subsequent to the
agreement, there is no basis for such allegations.
It is also submitted that there is no truth in the
allegation made by the 2nd respondent about his
telephone talk with Shoukin Malik, to defame the
appellant. It is contended that having received huge
money from the 2nd respondent pursuant to the settlement
arrived at, false complaint is filed by the appellant
to harass the 2nd respondent. Learned senior counsel
also relied on the recent judgment of this Court dated
21st August, 2019 passed in Criminal Appeal No.1165 of
2019 wherein in similar circumstances FIR was quashed
by this Court.
13. Having heard learned counsel for the parties and
after perusing the impugned order and other material
placed on record, we are of the view that the High
Court exceeded the scope of its jurisdiction conferred
under Section 482 CrPC, and quashed the proceedings.
Even before the investigation is completed by the
investigating agency, the High Court entertained the
Writ Petition, and by virtue of interim order granted
by the High Court, further investigation was stalled.
Having regard to the allegations made by the
appellant/informant, whether the 2nd respondent by
Crl.A. @ SLP(Crl.)No.4294 of 2019
9
clicking inappropriate pictures of the appellant has
blackmailed her or not, and further the 2nd respondent
has continued to interfere by calling Shoukin Malik or
not are the matters for investigation. In view of the
serious allegations made in the complaint, we are of
the view that the High Court should not have made a
roving inquiry while considering the application filed
under Section 482 CrPC. Though the learned counsels
have made elaborate submissions on various contentious
issues, as we are of the view that any observation or
findings by this Court, will affect the investigation
and trial, we refrain from recording any findings on
such issues. From a perusal of the order of the High
Court, it is evident that the High Court has got
carried away by the agreement/settlement arrived at,
between the parties, and recorded a finding that the
physical relationship of the appellant with the 2nd
respondent was consensual. When it is the allegation
of the appellant, that such document itself is obtained
under threat and coercion,it is a matter to be
investigated. Further, the complaint of the appellant
about interference by the 2nd respondent by calling
Shoukin Malik and further interference is also a matter
for investigation. By looking at the contents of the
Crl.A. @ SLP(Crl.)No.4294 of 2019
10
complaint and the serious allegations made against the
2
nd respondent, we are of the view that the High Court
has committed error in quashing the proceedings.
During the course of hearing, learned counsel for the
appellant, brought to our notice provision/Section
114-A of the Indian Evidence Act, 1872. Section 114-A
of the Indian Evidence Act, 1872 deals with the
presumption as to absence of consent in certain
prosecution for rape. A reading of the aforesaid
Section makes it clear that, where sexual intercourse
by the accused is proved and the question is whether it
was without the consent of the woman alleged to have
been raped, and such woman states in her evidence
before the Court that she did not consent, the court
shall presume that she did not consent.
14. Though Learned senior counsel Sri Mukul Rohatgi
relied on the judgment of this Court dated 21st
August,2019 in Criminal Appeal No.1165 of 2019, but we
are of the view that the said judgment would not render
any assistance to support his case. Whether in a given
case power under Section 482 is to be exercised or not,
depends on the contents of the complaint, and the
material placed on record. In that view of the matter,
we are of the view that it is a fit case to set aside
Crl.A. @ SLP(Crl.)No.4294 of 2019
11
the order passed by the High Court and allow the
investigating agency to proceed with the further
investigation in accordance with law. It is made clear
that we have not expressed any opinion on the merits of
the complaint, and it is open to the investigating
agency and competent court, to proceed in accordance
with law.
15. For the aforesaid reasons, this criminal appeal is
allowed and the impugned order dated 13th December, 2018
passed in R/Special Criminal Application No.9897 of
2017 by the High Court of Gujarat is set-aside. The 2nd
respondent shall appear before the concerned Police
Station on 18-11-2019 at 11.00 a.m. and co-operate with
the investigation. Till then no coercive action shall
be taken against him.
 ...................J.
 [UDAY UMESH LALIT]
 ...................J.
 [Indu Malhotra]
 .................J.
 [R. Subhash Reddy]
New Delhi;
October 25, 2019