JUDGMENT
R.S. Garg, J.
1. Being aggrieved by the judgment and decree dated 18-3-1994 passed in Civil Suit No. 2-A of 1991, by the learned Sixth Additional Judge to the Court of the District Judge, Jabalpur, decreeing the plaintiffs’ suit, the defendants have filed the present appeal under Section 96 of the Code of Civil Procedure. The brief facts leading to the case are that the plaintiffs filed a suit alleging that the suit property was purchased by them on 23-10-1986. Defendant No. 1 was in occupation of the ground floor as licensee of Smt. Kripawatibai. The plaintiffs further allege that one Usha Rani was the niece of Kripawati, the said Usha Rani was kept as a licensee in the premises so that she could look after Smt. Kripawati. After the death of Usha Rani, defendant No. 1, with his sons, namely, Arjun Singh and Ajit Singh, was in occupation of the premises. The plaintiffs further contended that on 14-7-1983, defendant No. 1 informed Smt. Kripawati that contrary to the wishes of Smt. Kripawati, defendant No. 1 would not live or reside in the house. The plaintiffs contended that after the sale of the premises, the licence stood revoked. Defendant No. 1 assured vacation of the premises but continued to remain in the premises. The plaintiffs, therefore, by their notice, dated 27-1-1987 asked defendant No. 1 to remove his occupation. The plaintiffs further submitted that they were entitled to a decree for a mandatory injunction, so also, a decree for mesne profits.
2. Defendant No. 1 contended that the plaintiffs are not the owners of the property but, in fact, the property belonged to Smt. Usha Rani, who was the wife of defendant No. 1. It was further alleged that up to her death on 2-11-1982, Usha Rani resided in the premises as an absolute owner and in view of the Will executed by Usha Rani defendants Nos. 2 and 3 are in occupation of the premises as absolute owners, it was also contended that Usha Rani was residing in the premises as licensee. It was also submitted that the original Will executed by Devi Prasad Shrivastava, husband of Smt. Kripawati, is in possession of Kripawati, the same be summoned and the suit, otherwise, be dismissed, as Smt. Kripawati, the alleged owner was not joined as a party. After hearing the parties, the learned trial Court held that the plaintiffs are the owners of the house in suit and have acquired title by virtue of the sale deed, dated 23-10-1986. It also held that defendant No. 1 was a licensee on the ground floor. It also held that defendants Nos. 2 and 3 are not occupying the premises in their independent rights. Holding that the licence has been properly terminated, the defendants are liable to vacate the premises, the trial Court held that the plaintiffs are entitled to mesne profits at the rate of Rs. 3,000/- per month.
It also held that Barrister Devi Prasad did not bequeath the property in favour of Usha Rani, nor Usha Rani bequeathed the property in favour of defendants Nos. 2 and 3. Being aggrieved by the said judgment and decree, the defendants have preferred this appeal.
3. In the appeal, an application under Order 6, Rule 17, Civil Procedure Code, for amendment of the written statement has been filed by the appellants seeking various amendments. By the application for amendment, the defendants want to contend (a) that no decree for payment of future mesne profits can be granted in view of the provisions of Order 20, Rule 12 of the Code of Civil Procedure, (b) that the plaintiffs have neither valued the suit properly and legally nor have paid proper court fee. According to the allegations made in the plaint, the suit property is worth Rs. 4,50,000/- and the plaintiffs have not valued the suit properly, (c) that Smt. Kripawati never executed the power of attorney dated 21-3-1985 or 10-7-1990. The documents are forged and fabricated and have been manufactured by Vijay Kumar in collusion with the plaintiffs. Smt. Kripawati never appeared before the Sub-Registrar and Vijay Kumar was neither legally competent to sign the sale deed, nor to present the same for registration. The said sale deed is hit by the. provisions of Sections 32 and 33 of the Indian Registration Act, (d) that the suit as framed for relief of mandatory injunction is not tenable in the eyes of law because the defendants are in exclusive possession of the property and the suit for possession alone is maintainable and the Court below was wrong in granting a decree for possession under the garb of relief of mandatory injunction.
4. It has to be seen from the original pleading that the defendants did not raise any of such pleadings in the trial Court. What was contended before the trial Court was that the property originally belonged to Barrister Devi Prasad who, in his turn, had executed a will in favour of Smt. Usha Rani. It is also contended in the written statement that after the death of Barrister Devi Prasad, Kripawati had no right, title or interest in the property and, therefore, personally or through agent or attorney, she could not alienate the property. The defendants also contended that Smt. Usha Rani was in possession of the property and had executed a will in favour of her sons, therefore, defendants Nos. 2 and 3 are in occupation of the premises in their own rights. The various pleas which are sought to be raised for the first time in the appeal were not raised in the trial Court. The defendants, in their application, had nowhere said as to why the said plea regarding maintainability of the suit, payment of court-fee, genuineness of the document and the authority to present the sale deed to the Registrar were not raised. An application for amendment at the appellate stage is not barred but the appellate Court has to exercise its jurisdiction with great caution and care. An application for amendment at the appellate stage should not become a handle for delaying proceedings. In the instant case; it is apparent that the defendants are trying to raise such pleas which were ordinarily available to them but were not raised by challenging the genuineness of the power of attorney. The defendants want a second inning and want further evidence to be adduced. If the defendants knew that the power of attorney was forged or fabricated, then these pleadings should have been brought on record in the original written statement. The defendants cannot be permitted to raise these pleadings by way of amendment. However, regarding the other pleadings, in my opinion, the defendants cannot make out a case for grant of amendment.
5. It is a trite law that unless prejudice is shown, the question or jurisdiction or the court-fee would not be considered for the first time by the appellate Court. Successful reliance can be placed on Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 and R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd., AIR 1993 SC 2094. In the instant case, the suit was filed in the Court of the Additional District Judge. Assuming the value of the property is much more than Rs. 20,000/-, then too, the suit had to be filed before the Additional District Judge or the District Judge. What prejudice has occasioned to the defendants is neither clear from the original pleadings nor from the proposed amendment. It is further to be noted that in a suit where the forum is the same and the only question is in relation to the court-fee and valuation of the suit, the defendant will face the rigour of the cost with great force. In the case in hand under the above circumstances, the amendment regarding valuation and jurisdiction now, for the first time at appellate stage cannot be permitted to be raised.
5-A. The defendants, by way of amendment, wish to raise a legal plea that in view of the provisions of Order 20, Rule 12, Civil Procedure Code, a decree straightway for mesne profits cannot be passed, the Court should pass a decree directing enquiry as to such mesne profits. The above pleadings and the arguments both are based on misconception of law. Order 20, Rule 12, Civil Procedure Code, says that where the suit is for recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree for possession, for rents which have accrued and for mesne profits or direct an enquiry as to such mesne profits. It is thus clear that in a suit for recovery of possession and for rent or mesne profits, the Court while passing a decree for possession of the property may pass a decree for possession, rent and/or for mesne profits. It is thus clear that Order 20, Rule 12, Civil Procedure Code nowhere provides that in every case, the Court has to pass a decree directing an enquiry as to rent or mesne profits from the institution of the suit until the delivery of possession. I would place reliance on a Division Bench judgment of this Court in the matter of Babulal v. Parwati, 1992 MPLJ 282, wherein this Court has held that the trial Court is not debarred from passing a final decree for mesne profits straightway without directing an enquiry there-into, if there was material available before it to determine to the amount of mesne profits. The proposed amendment regarding maintainability of the suit for mandatory injunction also cannot be allowed because if this pleading was raised before the trial Court, the plaintiffs could, if they were so advised, amend the suit from one for relief of mandatory injunction to the relief of possession. In the matter of Milka Singh v. Diana, AIR 1964 J & K 99, it was held that a suit for an injunction against a licensee whose licence has been terminated by a valid notice is maintainable. It was also held that the order of the Court that such suit is not maintainable and directing the plaintiff to amend the plaint so as to convert the suit into one for possession is legally erroneous and without jurisdiction. It was further held that where a licensor approaches the Court for an injunction within a reasonable time after the licence is terminated, he is entitled to an injunction. This discretionary relief may be refused, if it is proved that the licensor has hot acted diligently or with caution. Holding that a mere licence does not create any estate or interest in the property to which it relates, it only makes an act lawful which without it would be unlawful. It is further held in the said case that a licensee is a licensee whether the licence is for occupation of the premises or for casual visits or for any other purpose. The status of a licensee cannot change or vary according to the purpose of the licence. The principle once a licensee always a licensee would apply to all kinds of licensees. In clear terms, the Division Bench has held that it cannot be contended that since the usual mode of proceeding is to bring a suit for possession, the remedy by way of mandatory injunction is barred in view of Section 56(1).
6. In the matter of K. P. George v. Thomas John, AIR 1984 Ker. 224. the facts were that under an agreement, the defendant was using a room of the plaintiff. After terminating the agreement by notice, plaintiff promptly sought a mandatory and prohibitory injunction against the defendant. The Division Bench held that in view of the plaintiff’s promptitude as also the defence that the agreement was a lease, it is clear that the injunction can be properly issued and it is not necessary to drive the plaintiff to file a suit for possession. In the instant case, it has to be held from the evidence available on record that the plaintiff has not only shown the promptitude but has also shown that the licence was properly revoked. It is clear from the evidence that Ex. P.-18, the letter, was written by Smt. Kripawati on 14-8-1986. She had clearly stated in the letter that the defendant was assuring Smt. Kripawati that he was a licensee and would vacate the premises. From Ex. P.-33, also it is clear that Smt. Kripawati had asked the defendant to vacate the premises. The defendant himself had written various letters to Smt. Kripawati, wherein he has clearly stated that he would vacate premises immediately after making alternative arrangement. It is thus clear that Smt. Kripawati had asked the defendants to vacate the premises and the defendants without asserting any hostile title were assuring Smt. Kripawati that they would vacate the premises. These assurances, by sending letters, would certainly lead to an inference that the mother (aunt)-in-law would occupy the premises after the son-in-law makes an alternative arrangement. Under these circumstances, it is clear that the defendants were neither asserting a hostile title, nor were stating that they were in possession of the property as lessee. A licensee is always a licensee. After termination of the licence, a suit for injunction is maintainable against him. In any case, assuming every thing to be in favour of the defendants after the termination of the licence, if a suit for possession is required to be filed, then such pleadings must be raised in the trial Court. It is because of such pleadings, the plaintiffs, if so advised, may amend their suit after payment of the court-fee, etc.
7. The plaintiffs, through their counsel, on 27-1-1987 under Ex. P.-5, wrote to defendant No. 1 that with the sale of the property, the licence has automatically come to an end. It was also asserted in the notice that at the time of sale, the attorney of Smt. Kripawati asked the defendants to quit the premises on which the defendants promised to vacate. By this letter, Ex. P.-5, the plaintiffs revoked the licence, asked for possession and mesne profits at the rate of Rs. 3,000/- per month. The suit has been filed on 1-4-1987, i.e. within two months of the said notice, Ex. P-5. By no stretch of imagination it can be said that the suit was belated or the plaintiffs were hibernating. The plaintiffs immediately after acquiring the rights on 23-10-1986, revoked the licence and asked the defendants to hand over possession. The total period of 5 months cannot be termed to be long delay on the part of the plaintiffs.
8. In the matter of Sant Lal Jain v. Avtar Singh, AIR 1985 SC 857, the Supreme Court held that if the licensee did not vacate the premises after the expiry of licence period, a suit for mandatory injunction directing the licensee to vacate the premises would be maintainable. In that case also, the licensee took the plea that in such a situation, the suit for possession ought to have been filed. The Supreme Court, repelling the contention has held that the licensor had not come to the Court with the suit for mandatory injunction after any considerable delay which may disentitle him to the discretionary relief. It is further held that even if there was some delay, in a case of this kind, attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. Holding that the suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds in possession of the property to which he may be found to be entitled. Therefore, the plaintiff should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.
9. As already held above, in a suit where jurisdiction of the Court is not affected, the defendant who is raising the pleas of jurisdiction or maintainability of the suit has to face the rigour of the legal position and is required to satisfy not only the letter of law but even the conscience of the Court. Assuming the plaintiff was called upon to file a suit for possession in place of a suit for mandatory injunction, what further defence the defendant could raise. In the instant case, all possible pleas were taken by the defendants. Having failed in their attempt to grab the property, now the defendants want to raise such legal pleas which, otherwise, do not affect the jurisdiction of the trial Court. If the plaintiffs file a suit for possession, they would be called upon to pay extra court-fee, nothing beyond that. If such a suit is decreed, then the burden of costs may be on the head of the defendants. In any case, what prejudice is caused to the defendants is not shown. Under such circumstances, it cannot be held that the suit for mandatory injunction was not maintainable and the amendment proposed cannot be allowed.
10. Learned counsel for the appellants, on the strength of the application for amendment contended that neither the power of attorney was proper nor the presentation of the document was valid. It was also submitted that the provisions of Sections 32 and 33 of the Registration Act were not complied with. What he wants to submit is that once the power of attorney is held to be bad or the presentation of the sale deed is held to be bad, the plaintiff would not acquire any title and a suit by a person with having title would not be maintainable. At the time of argument, it was also contended that during the pendency of the suit, some power of attorney was executed by Smt. Kripawati in favour of her son Vijay Kumar, therefore, the document which was already registered earlier ought to have been produced for re-registration within four months and, in absence of re-registration of the document, the same would not validly convey title in favour of the plaintiffs. Though these pleadings were not raised before the trial Court, but these are pure and simple legal pleas which are required to be considered and have ultimately to be negatived. The arguments raised by the counsel for the appellants are based basically on the interpretation of Sections 32 and 33 of the Indian Registration Act. It would be useful to reproduce the relevant part of Sections 32 and 33 of the Registration Act, 1908 :-
“32. Persons to present documents for registration. – Except in the cases mentioned in Sections 31, 88 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office.
x x x x x x (c) by the agent of such person, representative or assign, duly authorised by power of attorney executed and authenticated in manner hereinafter mentioned. x x x x x x 33. Power of attorney recognizable for purposes of Section 32. - (1) for the purposes of Section 32, the following powers-of-attorney shall alone be recognised, namely :- (a) if the principal at the time of executing the power of attorney resides in any part of India in which this Act is for the time being in force, a power of attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the Principal resides."
11. It is clear from the law that a person may execute a document and may himself present it for registration or he may execute the document and may authorise an agent by power of attorney to present it for registration. The interpretation of Sections 32 and 33(1)(a) arises only in the second and third alternatives where a person authorises some body to present a document for registration or authorises a person to execute and present the document for registration. In my opinion, Section 33(1)(a) does not apply at all when the agent himself is the executant of the dead pursuant to the authority given to him by the principal and presents the document for registration. In such a situation, he himself is the executant though in the capacity of the agent of the principal. A successful reliance can be placed on the judgment of this Court in the matter of Ramrao Palkar v. Padmavatibai, 1993 R. N. 397. After considering the entire case law, this Court has held that a person who holds the power of attorney to execute a document and also to present it for registration is competent in every case. It has even been held in that case that the power of attorney is a document which a notary may verify, authenticate, certify or attest the execution under Section 8 of the Notaries Act, 1952. Considering the various judgments and placing reliance on the language of the Act, it has been held that the power of attorney was executed by Ganpatrao in favour of Narayanrao, duly notarised and the sale deed was executed by Narayanrao in the capacity of general attorney of Ganpatrao. The High Court further held that the deed could not have been held to be invalid by resort to the provisions contained in Section 33(1)(a) of the Registration Act. Not only this, from the language of Section 33(1)(a), it is clear that it does not apply at all when the agent himself is the executant of the deed, pursuant to the authority given to him by the principal to present the document for registration. He himself being the executant could present the document for registration.
12. Shri Ravish Agarwal places reliance not only on the cases which are referred in Ramrao Palkar’s case (supra) but has also relied upon Division Bench judgment of this Court in the matter of Sakinabai v. Sakinabai Ibrahim, 1963 MPLJ 191. The Division Bench has held that where a power of attorney executed by a wife in favour of her husband confers power upon the husband to effect mortgage of the property belonging to her and further to get it registered, the latter expression implies power on the part of the husband to execute the document and to present it for registration and to admit execution of the same on behalf of the wife. The Division Bench has further held that the husband is the person executing for the purpose of appearing under Section 34 and admitting execution thereof under Section 35. Such presentation and admission of execution of the mortgage deed by the husband is, therefore, valid as being by a person who executed it, may be as an agent, and also because it is by the representative of the person who was a party to the deed. The High Court held that the power of attorney not only authorises the execution of the deed but also to get it registered which means to do every thing that is necessary to get it registered including presentation of the deed. In the instant case also, the power of attorney has been executed by Smt. Kripawati in favour of Vijay Kumar. Vijay Kumar not only executed the document but signed the same, and therefore, he was entitled to present the document for registration.
13. In the instant case, it is clear that the power of attorney was executed by Kripawati in favour of Vijay Kumar and the same was properly notarised. If that power of attorney is treated to be a document which can be authenticated by the notary public, then the document would certainly convey authority not only to execute the document but to present the same for registration.
14. The plaintiffs probably realising that the power of attorney executed on 21-3-1985 in favour of Vijay Kumar is defective or suffers from some lacuna, obtained another power of attorney in favour of Vijay Kumar during the pendency of the suit. The appellants contend that after the second power of attorney was executed, the document should have been represented for re-registratioh under Section 23A of the Registration Act and as the document was not presented for registration within the period of four months, the plaintiffs could not be permitted to take advantage of the second power of attorney. The argument has to be rejected. In the matter of Jugraj Singh v. Jaswant Singh, AIR 1971 SC 761, in similar circumstances, the Supreme Court held that the first power of attorney was not duly authenticated. The second power of attorney was executed which was duly authenticated and in the second power of attorney, the first power of attorney was ratified. According to the Supreme Court, the second power of attorney validates the transaction and the registration even though both being earlier to the second power of attorney. According to the Supreme Court, such ratification relegates back to the date of the act done and the agent is put in the same position as if he had authority to do the act at the time the act was done by him. If there was not illegality in the registration, the same would cure. In the instant case, there is no illegality in execution and presentation of the sale deed because the power of attorney was properly authenticated by the notary public, but assuming that there was some defect or illegality in the first power of attorney, then after execution of the second power of attorney during the pendency of the suit., the illegality stood cured and the defendants now cannot contend that Vijay Kumar had no authority either to execute or present the sale deed for registration.
15. It was further submitted that there are no allegations against defendants Nos. 2 and 3, therefore, the suit against them ought to have been dismissed. It is to be seen that defendants Nos. 2 and 3 are living with their father, defendant No. 1, who was husband of Smt. Usha Rani. Usha Rani was a licensee. She was living with her husband and children. The defendants would succeed to Smt. Usha Rani on the rights she possessed. They cannot acquire anything better than what Usha Rani possessed. In the instant case, it is amply proved that Usha Rani was a licensee and was kept in the premises to look after Smt. Kripawati. After her death, her successors would also be deemed to be licensee. The decree against all the defendants was rightly passed.
16. It was then submitted that Barrister Devi Prasad was the owner of the property and he had executed a will in favour of Smt. Usha Rani. The said will was in possession of Smt. Kripawati, which ought to have been produced in the Court. The argument is based on the foundation which was never founded. The argument presupposes that Barrister Devi Prasad was the owner of the property, it also presupposes that Barrister Devi Prasad had executed some will. The burden to prove both the facts was on the defendants. In my opinion, they have miserably failed in proving either of the allegations. From the record and even from the admission made by defendant No. 1, it is clear that the property belonged to Smt. Kripawati. The defendants cannot be permitted to say that there was some will executed by some body, which is in favour of a third person. There is nothing on record even otherwise to show that there was some will executed by Barrister Devi Prasad or to prove that he was the owner of the property. The ground raised in support of the appeal has to be rejected.
17. It was next contended that Smt. Kripawati was alive but was not joined. I fail to understand as to how Smt. Kripawati was a necessary party. Smt. Kripawati was the first owner and had transferred the property in favour of the plaintiffs. The plaintiffs after terminating the licence filed the suit. It is well established law that a purchaser can always file a suit, either for injunction or for recovery of possession on the strength of the title deed and in such a case, the seller or the earlier owner is never a necessary party, because the plaintiffs are called upon to prove that the earlier owner had, in accordance with law, alienated the property in their favour. If they fail to prove, then they would be out of Court, but if they establish that the property was legally alienated in their favour, then the suit would be decreed. The defendants are raising a plea which is commonly known as jus-tertii. They are trying to show that title is possessed by a third party. Smt. Kripawati having transferred the property in favour of the plaintiffs, she was neither a necessary party nor a proper party. Her absence in the suit would not make the suit a defective one. The argument again has to be rejected.
18. Lastly, it was contended that the mesne profits awarded by the learned trial Court are excessive. The plaintiffs, in their notice, revoking the licence, have clearly stated that the property can fetch rent of Rs. 3,000/- per rnonth.The defendants did not deny the allegation nor did they reply the notice. Not only this, the plaintiffs in their statement have substantiated their plea and the defendant Paramjit Singh, as D. W. 1 has no where denied the fact, nor has asserted that the suit property does not have a rental value of Rs. 3,000/- per month. The trial Court was justified in holding that the plaintiffs are entitled to mesne profits at the rate of Rs. 3,000/- per month.
19. The appellants could not make out a case for making any interference in the judgment of the trial Court. The appeal is liable to and is accordingly dismissed with costs. Counsel’s fee Rs. 2,000/-. The respondents-plaintiffs would be entitled to have costs from the appellants-defendants.