{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.471 OF 2011 Kakasaheb s/o Eknathrao Jadhav and another Appellants Versus Sushilabai w/o Ramkrishna Garje and another Respondents Mr.A.R.Kale, advocate holding for Mr.S.V.Natu, advocate for appellants Mr.S.R.Bharad, advocate holding for Mr.V.D.Salunke, advocate for respondents CORAM : S.S.SHINDE, J. DATE : 22 nd November, 2011 PER COURT: 1 Heard learned Counsel for the respective parties. 2 Learned Counsel for the appellants submits that the suit properties are in individual names. However, case of the respondents is that they are jointly cultivating the properties. No specific area was mentioned in the suit as to which is the property or on which side there is encroachment. It is further submitted that the evidence of the power of attorney holder on behalf of plaintiffs cannot be relied upon. Learned Counsel for the appellants, in support of his contention, placed reliance on the reported judgment of the Supreme Court in the case of Janki Vashdeo Bhojwani Vs. Indusind Bank Limited, reported in 2005 AIR (SC) 439 and in particular paragraphs 12 and 13 of the said judgment and submits that the questions raised in this Second Appeal are pure {2} questions of law and those can be considered at this stage as well. He further submits that there was mis-joinder of cause of action and, therefore, the suit should not have been allowed by the trial Court. He invited my invitation to the grounds stated in the Second Appeal and submits that the Second Appeal deserves consideration. 3 Learned Counsel appearing for the respondents placed reliance upon the reasons recorded by the Courts below and submits that there are concurrent findings of facts and, therefore, this Court should not interfere. 4 I have given due consideration to the rival submissions. From perusal of paragraph 15 of the judgment of the trial Court, it is seen that the trial Court has referred to the evidence of the plaintiffs. The lower appellate Court has also taken note of the fact that the map prepared by the T.I.L.R. at Exhibit-24 is filed along with the plaint. Exhibit-24 shows disputed area. The appellate Court, in para 9 of the judgment, has observed that: "It is admitted position in this case that defendants had filed one application below Exh.30 and requested to appoint the T.I.L.R. for joint measurement. Accordingly, application was allowed and joint measurement was done by the T.I.L.R. He has produced the map below Exh.41, which is admitted by the plaintiffs as well as defendants and therefore, in view of this admission, as per the said map, defendant no.1 is in possession of 10R land from the Gat No.337, likewise defendant no.2 is in possession of 17R land from block no.337 and both defendants no.2 is in possession of excess of 10R and 17R land respectively than their actual {3} possession." 5 The contention of the Counsel for the appellants that there is no specific description of the property, at this belated stage, is afterthought. The prayer for joint measurement was made by the appellants herein and after joint measurement, the appellants are found in excess of 10R and 17R land, respectively and, therefore, the trial Court as well as the appellate Court, after appreciating the evidence placed on record, held that the appellants herein have encroached over 27R land from G.No.337 belonging to the Respondents. The case of the plaintiffs was that there is encroachment from southern side of G.No.337. The total area described in the plaint is 8 hectares 65 ares and, therefore, it cannot be said that area was not mentioned in the plaint. Therefore, taking overall view of the matter, in my opinion, since there is concurrent finding of fact recorded by the Courts below after appreciation of evidence that the appellants herein are encroachers of 27R land, the said finding is not perverse in any manner. Therefore, there is no reason to interfere in the concurrent findings of facts recorded by the Courts below. The contention of the learned Counsel for the appellants that the power of attorney holder cannot act on behalf of the plaintiffs would necessarily depend upon the term "acts". It will depend upon the evidence led by the parties as to whether the power of attorney holder has rendered some "acts" in pursuance to the power of attorney. If the power of attorney holder has rendered some acts in pursuance to the power of attorney, he may depose for the principal in respect of such acts. Even as per the judgment of the Supreme Court in the case of Janki (supra), said position is made clear in para 13 of the said judgment. Therefore, when there was opportunity to the appellants to raise these points in the {4} beginning itself before the trial Court and also before the lower appellate Court, it appears that the appellants did not invite any findings on these aspects from the Courts below. To adjudicate such points, evidence was necessary to be led by the parties. The application of the appellants for joint measurement was favourably considered and only after joint measurement, the evidence was brought on record and same is appreciated by the Courts below. Therefore, the Second Appeal does not raise any substantial questions of law. 6 Hence, Second Appeal is dismissed summarily. Consequently, Civil Application No.11167/2011 stands disposed of accordingly. S.S.SHINDE JUDGE adb/sa47111