1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Second Appeal No. 273/2000 Mohd. Kalimuddin Mohd Ainuddin ..vs.. Arefabi Mirza Bismilla Beg & 9 ors. Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr. Ziya Kazi, Advocate for appellant. Coram: R. K. Deshpande, J. Date : March 8, 2010 1. Heard Mr. Kazi, learned counsel for the appellant. 2. This appeal has been filed by original defendants challenging the judgment and decree dated 12.07.2000 passed by learned 2nd Additional District Judge, Akola in Regular Civil Appeal No. 188/1997 declaring that the plaintiff nos. 1 to 4 shall have 1/11th share each and plaintiff nos. 5 to 8 together shall have 1/11th share total share would be 5/11 both in the suit house properties and agricultural fields. It is further held that the plaintiffs are also entitled to partition and separate possession of their respective shares in the suit property. The order for Commissioner to be appointed has also been passed along with order for partition of agricultural fields under Section 54 of the Code of Civil Procedure to the Collector. 2 3. The appellant is original defendant no.2 whereas respondent nos. 9 and 10 are original defendant nos. 2 and 3. Respondent nos. 1 to 8 are original plaintiffs, who had filed Regular Civil Suit no. 7/1995 for partition and separate possession of the properties described in para 1 of the plaint, which were the ancestral properties in the hands of father of the plaintiffs and defendants namely, Mohd. Ainuddin s/o Mohd. Kalimuddin, who expired on 22.04.1960. 4. The trial Court, by its judgment and order dated 16.08.1997 dismissed the said suit by holding that the plaintiffs have failed to prove that they have total 5/11th share in the suit properties. The trial Court recorded finding that the relation between the parties are not disputed and the defendants have come up with a case that there was partition of house property during the lifetime of father and after his demise, sometime in the year 1970, of the landed properties. It was further held that plaintiffs had relinquished their share in properties. The trial Court recorded a finding that looking to the defence taken, the burden lies upon the defendants to prove their case. It was held that prima facie, defendant no. 2 led the evidence about the partition of the suit property and waiver of their share by plaintiffs. On the basis of these findings, the suit was dismissed. 3 5. In Regular Civil Appeal No. 188/1997, preferred by original plaintiffs, the appellate Court, the concurred with the finding of the trial Court that it was burden upon the defendants to establish that the partition took place in respect of the suit property. It was thus concurrent findings of both the courts that the property was owned by Mohd. Ainuddin, who expired on 22.04.1960 and it was ancestral property in his hands and that it was for the defendants to establish that partition took place during the lifetime of father and also after his demise in the year 1970. It was also burden upon the defendants to establish that the defendants have relinquished their right in respect of the suit property. The appellate Court, however, reversed the finding of the trial Court that the plaintiffs have failed to establish their case by entering into the witness box. It has recorded a finding that even if it is accepted that the of power of attorney holder of the plaintiff was not competent to depose for the plaintiff, still that cannot be a ground for drawing an adverse inference against the plaintiffs that they have not discharged their burden. 6. The aforesaid findings of the appellate Court are challenged in the present second appeal. 4 7. Mr. Kazi, learned counsel for the appellant/defendant no.2 has urged that the plaintiffs have failed to establish their case and once the appellate Court records a finding that the evidence of the Power of Attorney holder cannot be accepted then it has committed an error of law in holding that the plaintiffs have discharged their burden. He further argues that the plaintiffs have to stand on their own legs and cannot rely upon the weaknesses in the defendant’s case. He further urged that the findings recorded by the appellate Court that the defendants have failed to establish the theory of partition during the lifetime of the father and thereafter in the year 1970 and also in respect of relinquishment of their share by the plaintiffs, is perverse. He invited my attention to the findings recorded by the trial Court holding that defendant no. 2 has proved the theory of partition and also waiver of the right by the plaintiffs. 8. It cannot be disputed that when the plaintiffs have filed a suit alleging that the suit property is an ancestral property and the plaintiffs have share in it, it is for the plaintiffs to establish the same and in order to establish the same, it cannot rely upon the weaknesses of the defence. However, in the peculiar facts and circumstances of the present case, both the courts below have recorded a finding that the property was 5 initially owned by father Mohd. Ainuddin and it was an ancestral property in his own hands. This being an undisputed position, both the Courts below have recorded a concurrent finding that burden to establish that the property was partitioned either during the lifetime of the father or subsequently in the year 1970 or that the plaintiffs have waived or relinquished their right in respect of the suit property, lies upon the defendants. No fault can be found in respect of the said finding and no substantial question of law out of the same. 9. So far as the question of proof regarding partition of the ancestral property is concerned, the trial Court has recorded a finding that defendant no.2 has led evidence about the partition of the property and waiver of the share by the plaintiffs who are sisters. The appellate Court has reversed the findings by disbelieving the evidence of the defendants. Relevant portion of the discussion in the judgment of the appellate Court contained in para 8 of its judgment and reproduced below. “8. .....In order to discharge his burden, the second defendant has examined himself and his brother in law Sulemankha. Sulemankha has tired to depose that it was in his presence partition of agril. fields had taken place and that it was in his presence, the sisters of the defendants had relinquished their interest. It is 6 nowhere the case of the second defendant that the partition had taken place in the presence of any witness and, therefore, for this reason and also because Sulemankha is the close relative of the second defendant, his evidence doe snot carry much weight. The only deposition of the defendant Mohd. Kalimoddin is to the effect that at the time of partition of agricultural fields, the sisters were asked and they had refused to take any share. So much only of the evidence of the defendant to my mind is not enough for discharging the burden so as to shift the same upon the plaintiffs to prove otherwise. In his cross-examination, the defendant has stated that there was no document or memorandum of partition made at the time of partition was effected or at any time thereafter. Similar is the case with regard to the disposition of the house properties allegedly made by the deceased Ainoddin in his life time only in favour of the defendants.” The view taken by the appellate Court, as reproduced above, is possible a view and hence there is no question of perversity in recording the finding. Hence, no substantial question of law arises in recording the said finding by the appellate Court. 10. Mr. Kazi, learned counsel for the appellants, has relied upon decision of the apex Court in Janki Vashdeo Bhojwani & anr ..vs.. Indusind Bank Ltd. & ors.; 2005 (1) Mh. L. J. 7 1170 in support of his contention that the evidence of Power of Attorney holder cannot be accepted. It has been held that the Power of attorney cannot depose for the principal in respect of the matter in which only the principal can have personal knowledge and in respect of it the principal is entitled to be cross-examined. He relied upon para nos. 11 to 22 of the judgment. The prepositions laid down in the said judgment cannot be disputed. However, in the peculiar facts and circumstances of the present case, concurrent findings recorded by both the Courts below that the burden of proof shifts upon the defendants once it is accepted that the property was ancestral property in the hands of the father of the plaintiffs and the defendants, the evidence of Power of Attorney holder for and on behalf of the appellants, even if it is ignored, would not make any difference. The appellate Court has, therefore, rightly recorded such a finding with which, no fault can be found. In the result, the second appeal is dismissed with no order as to costs. J UDGE kahale