Sushilabai Ambaji Kotlapure And ... vs Dattatraya Gokul Jadhav And ...
2021 Latest Caselaw 10680 Bom

                                         (1)


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                     SECOND APPEAL NO. 95 OF 2020
                                  with
                    CIVIL APPLICATION NO.3973/2021
                    CIVIL APPLICATION NO.2682/2020

 1)       Sushilabai Ambaji Kotlapure
          and Ors.                                   = APPELLANTS
                                                      (Orig.Plaintiffs)

          VERSUS

 1)       Dattatraya Gokul Jadhav and
          Anr.                                       = RESPONDENTS
                                                     (Orig.Defendants)
                                         -----
 Mr.AV Indrale-Patil,Advocate for Appellants;
 Mr.KK Kulkarni,Advocate for Respondent No.1
                                        -----

                                   CORAM :       SMT.VIBHA KANKANWADI,J.

                                   DATE :        10th August, 2021.

 PER COURT :-

1. Present appeal has been filed by original

plaintiffs, challenging judgment and decree passed

in Regular Civil Appeal No.62/2013, by learned

District Judge-1, Osmanabad on 27.12.2019. The said

appeal was filed by original deft.No.1, challenging

the judgment and decree passed in RCS No.71/2001 by

Joint Civil Judge, Junior Division, Tuljapur,

District Osmanabad on 5.1.2013. The said suit filed

by the present appellants-original plaintiffs was

decreed. The said suit was filed for declaration

of ownership and permanent injunction. After the

said decree was challenged by original deft.No.1,

who was the only contesting party, after hearing

both sides, the appeal came to be allowed. The

decree passed by the trial Court was set aside and

the suit was dismissed.

2. Heard learned Advocates appearing for the

respective parties. In order to cut short it can be

stated that both of them have made submissions in

support of their respective contentions.

3. It has been vehemently submitted on

behalf of the appellants that the learned first

Appellate court failed to consider the factual

aspects and went unnecessarily against the decision

given by the lower Court. In fact, the suit was

entirely decreed on 5.1.2013 and at that time there

were in all four issues those were framed.

However, deft.No.1 was challenging the execution of

General Power of Attorney by mother of deft.No.1 -

Bhamabai in favour of deft.No.2 and, therefore, by

framing that issue on 19.3.2014, the first

Appellate court had referred that issue to the

learned Trial Judge. Parties had led evidence and

the finding, that was given on that issue by the

Trial Court, was also in favour of the plaintiffs.

Still the first Appellate Court come to a

conclusion that the plaintiffs have failed to prove

that Bhamabai had executed legal power of attorney

(Exhibit-242) in favour of deft.No.2. After

holding this in the negative, the sale-deed that

was executed by deft.No.2 on the basis of said

Power of Attorney in favour of the plaintiffs, has

been held to be not valid and legal, giving title

to the plaintiffs over the suit property and,

therefore, substantial question of law is arising

in this case is, as to whether the first Appellate

Court was justified in considering all these

factual aspects meticulously and went against the

decision by the trial Court in respect of execution

of the General Power of Attorney. In fact, when

deft.No.1 was challenging the execution of that

document as fabricated one, the burden ought to

have been cast on deft.No.1 and not on the

plaintiffs. Even in the appeal also, proper points

for determination have not been formulated, as

required under Order XLI Rule 33 of the CPC and

only two points were framed. The plaintiffs had

examined PW 1 - Ambaji Malhari Kotlapure to prove

that power of attorney and the execution is proved.

That was in favour of deft.No.2. The learned First

Appellate court failed to consider the provisions

of Section 85 of the Indian Evidence Act regarding

presumption about the legality and validity of the

General Power of Attorney. Only on the basis of

reversal of the finding regarding execution of the

power of attorney, the entire suit has been

dismissed. Hence, the Second Appeal deserves to be

admitted and all those points are required to be

adjudicated.

3. Per contra, learned Advocate appearing

for Respondent No.1 - original deft.No.1, has

entirely supported the reasons given by the learned

First Appellate Court. It was submitted that when

the plaintiffs were coming with a case that only

the basis of the said Power of Attorney, deft.No.2

had sold the property to them, then they should

prove that it is a legal transfer. All the minute

things have also been covered and dealt with by the

learned first Appellate court and, therefore, it

does not require any interference.

4. At the outset, it is required to be noted

that, merely because there are contradictory

findings, this Court cannot jump to a conclusion

that the appeal deserves to be admitted. A basic

rule for admitting a Second Appeal is, that the

appellants should show that the case involves

substantial questions of law. If certain facts or

point of law were not considered by the Trial

Court, which had led to a wrong conclusion and

passing of the decree, and if that wrong has been

set right or correct position of law has been

appreciated and considered by the first Appellate

Court, leading to the reversal of the decree passed

by the Trial Judge, then it may not lead to

substantial question of law.

5. In the instant case, the plaintiffs had

come with a case that agreement to sell was

executed in their favour on 21.8.1999 and at that

time, they had given amount of Rs.1,00,000/- to

mother of deft.No.1 and it was agreed that rest of

the amount would be given at the time of execution

of the sale-deed. Thereafter, they had given a

public notice on 23.8.1999 in Daily newspaper,

stating that the transaction about the agreement to

sell has been entered into between the plaintiffs

and deft.No.2. Thereafter, they pleaded that on

21.8.1999 sale-deed was executed by paying

remaining amount of Rs.1,20,000/- and the sale-deed

was registered at Sub-Registrar's office at

Tuljapur. According to the plaintiffs, they have

become owner of the suit property on the basis of

the said sale-deed and they were put in possession

of the land on the date of the sale-deed. They

contend that deft.No.1 is still obstructing them

and, therefore, they filed the suit for declaration

of ownership and permanent injunction.

6. As aforesaid, deft.no.1 challenged the

fact of execution of General Power of Attorney by

his mother in favour of deft.No.2. It appears that

the learned Trial Judge has absolutely not

considered that the said significant fact requires

framing of the issue regarding execution of the

Power of Attorney; yet on the presumption that such

document exists, went on to decree the suit.

Thereafter, when the first Appellate Court found

that this point in issue has not been dealt with

properly by the Trial Court, the issue was framed

and the finding was invited from the learned Trial

Judge. Parties were then allowed to lead evidence.

Finding was given by the Trial Court that it is a

proper execution of the document. Then the said

finding was to be considered in the appeal that was

still pending before the first Appellate Court.

The first Appellate Court has come to a conclusion

that defendants have failed to prove that deceased

- Bhagabai had executed the said Power of Attorney

in favour of deft.No.2. Interesting point here to

be noted is that as per the pleading, the agreement

to sell was also executed on 21.8.1999 and on the

same day, the sale-deed has been registered.

Though Para No.8 in the plaint was amended, later

on, there was no amendment to Para No.5, which was

containing the averments that there was an

agreement to sell on 21.8.1999. Even in the

affidavit-in-chief of PW 1 - Ambaji, this is the

same fact that is reflected. Therefore, obvious

question is, when everything was to be done on that

day itself, then why there should have been

agreement to sell (Isara Pawti). That Isara Pawti

has not been produced in this case.

7. Another point to be noted is that if the

sale-deed was executed on 21.8.1999 itself, then

why there was necessity to give a public notice on

23.8.1999, containing the recitals that agreement

to sell has taken place. This fact on the face of

record itself is fishy. At the cost of

repetitions, it can be seen that if the sale-deed

was to be executed on that day itself, by giving

the entire amount of consideration and as per the

pleadings that amount of Rs.1,00,000/- was given to

the mother of deft.No.1, then why she should not

have taken to the Sub-Registrar's office for

execution of the sale-deed ?

8. Another fact that is coming on record is

that deft.No.2 is not related to deft.No.1 or

Bhamabai. When Bhamabai had grown-up son, then why

she should appoint deft.No.2 as her Power of

Attorney. One more fact, that is required to be

seen from the contents of the Power of Attorney, is

that though the document titled as `General Power

of Attorney', it also contains recitals about

giving power to deft.No.2 to sell the suit land. It

is not styled as `Special Power of Attorney'.

Further fact to be noted is that the Power of

Attorney dated 5.11.1990 was executed before the

Executive Magistrate, Solapur when Bhamabai was

resident of Tamalwadi, Tq. Tuljapur, District

Osmanabad. The plaintiffs have examined deft.No.2

after additional issue was referred for finding.

However, if we see his testimony, then it can be

seen that he is not giving the reasons as to when

he came in contact with Bhamabai; how confidence

was reposed by Bhamabai in him. We cannot miss out

that deft.no.1 is son of Bhamabai. Therefore, it

should be shown that there was some reason for

which Bhamabai had given preference for execution

of the Power of Attorney than asking her son to

enter into the transaction. No such things have

been stated by him in his Examination-in-chief. He

has simply stated that the document bears her thumb

impression and it has been executed in presence of

Executive Magistrate. Again at the cost of

repetitions, he has not given any reason as to why

Bhagabai was taken to Solapur only to get the

General Power of Attorney executed. The plaintiffs

or deft.No.2 are not coming with a case that no

such authority is there at Taluka level at

Tuljapur.

9. Another fact that is required to be

considered is that deft.No.2 in his Examination-in-

chief has not stated that he had handed over the

amount, which was given by the plaintiffs, to

Bhamabai. He is also silent as to why agreement to

sell was executed on the same day and the sale-deed

was registered on the same day. The plaintiffs

have also examined the scribe, who had scribed the

Power of Attorney. He has admitted in his cross-

examination that Bhagabai was introduced to him by

deft.no.2 and he was not knowing her prior to that

date. She was not able to read or write. But then

neither the Power of Attorney nor his testimony in

clear terms say that he had read over to her the

contents.

10. Learned first Appellate Court has taken

into consideration the legal position and the oral

evidence that has been led. From Para Nos.13 to

30, all the aspects, governing the dispute or

involved in the dispute, have been considered

properly. Further, the admissions, those have been

given by PW 1 - Ambaji, have also been considered,

in which he has clearly stated that the market

price of the suit land on the date of the sale-deed

was Rs.13,27,000/- and they have purchased it only

for Rs.2,20,000/-, as per the pleadings. All these

aspects, when considered properly and the law point

is also considered properly, including the

provisions of Section 85 of the Indian Evidence

Act, then it cannot be seen that the present

appellants are raising any substantial questions of

law. It has been correctly observed by the first

Appellate Court that presumption, under Section 85

of the Indian Evidence Act in favour of the Power

of Attorney, would arise only in case the said

Power of Attorney is legally and validly executed.

Further, that presumption is rebutted and the

circumstances, which have been brought on record by

deft.No.1 in this case, would definitely show that

he has rebutted that presumption. Under such

circumstance, when the alleged General Power of

Attorney itself is not legally and validly executed

in favour of deft.No.2, then the act of deft.No.2

in executing the sale-deed in favour of the

plaintiffs, cannot be held to be legal and valid.

11. Taking into consideration the detailed

and correct assessment of facts and application of

law by the learned first Appellate Court, no

substantial question of law, as contemplated under

Section 100 of CPC, is arising in this case and,

therefore, in view of the decision in the case of

Kirpa Ram (Deceased) Through L.Rs. And Ors. Vs.

Surendra Deo Gaur and Ors. - (2021) 3 Mah.L.J.

250, the Second Appeal stands dismissed. Pending

Civil Application if any stands disposed of.

12. After pronouncing the decision, learned

Advocate appearing for the appellants prayed for

order of status quo. He pointed out that the

learned Trial Judge had decreed the suit and

thereby held the plaintiffs as owner of the

property and restrained deft.No.2 from interfering

with the possession of the plaintiffs over the suit

land and thereafter the said order was in force

till the first Appellate Court decided the appeal.

Since the plaintiffs intend to approach the Hon'ble

Supreme Court, he prayed for the protection.

13. Learned Advocate for the respondent

objected for the same.

14. It is to be noted that, at this stage it

is not brought on record as to whether the first

Appellate Court had stayed the judgment and decree

passed by the Trial Court after the suit was

decreed. But the position stands, on the basis of

the documents which have been produced here, is

that the suit was decreed and then the appeal has

been dismissed and there is gap of about five years

in the same and, therefore, since the plaintiffs

intend to approach the Hon'ble Apex Court, the

parties to maintain status quo as on today for a

period of four weeks.

(SMT. VIBHA KANKANWADI) JUDGE

BDV