AGK IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.1010 OF 2007. APPEAL NO.1010 OF 2007. APPEAL NO.1010 OF 2007. Dnyaneshwar Vishnupant Bhusari & Ors. ...Appellants Versus. Sakharam Sadaba Sasane ...Respondent Shri Girish S. Godbole for the Appellants. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 25th February, 2008. : 25th February, 2008. : 25th February, 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. This Second Appeal is preferred by the unsuccessful defendants in a suit filed by the respondent-plaintiff. The appeal is placed for admission. 2. Briefly stated the case made out by the respondent-plaintiff is that he was holding ancestral property more particularly described in paragraph No.1 of the plaint. According to the case of the respondent, the first appellant who is an advocate by profession was appointed by him for looking after the proceedings relating to the suit property under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. It is the case of the respondent that as he had an implicit faith in the first appellant, he made signatures on the various documents as per the instructions of the first appellant. According to the respondent the first : 2 : 2 : 2 : appellant stated that the suit property can be saved from the provisions of the said Act of 1976 and therefore for that purpose an Agreement for Sale will have to be executed. According to the respondent, the first appellant represented that he will appoint a person of his confidence as the constituted attorney of the respondent. According to the case of the respondent, the first appellant forwarded a draft of an Agreement for Sale to him. The respondent suggested certain modifications in the said draft. 3. According to the case of the respondent, number of documents signed by the respondent were with the first appellant. According to the case of the respondent by deceiving him, the first appellant got signed a power of attorney from him. The case of the respondent is that the first appellant got the second appellant (nephew of the first appellant) appointed as the constituted attorney of the respondent. It is alleged that the respondent had never met the second appellant. It is alleged that first and second appellants acted in conspiracy and got executed the documents in respect of suit property in favour of the third appellant. The respondent filed a suit for declaration of ownership and for perpetual injunction. : 3 : 3 : 3 : 4. The first appellant contested the suit by filing written statement and denied various adverse allegations made in the plaint. In written statement the first appellant contended that in the year 1984 it was learned that the respondent was intending to sale the suit properties. At that time the first appellant was acting for the third appellant-firm and therefore he made enquiries with the respondent. At that time the first appellant learned that there was a proceeding pending before the competent authority under the said Act of 1976 and through one Shri Mahadik, advocate the respondent had filed written submissions in the year 2000. It is alleged that the first appellant enquired with the respondent regarding the rate at which he was intending to transfer the part of the suit property which will be allowed to be retained under the said Act of 1976. It is the case of the first appellant that if the rate of Rs.13000/- per guntha was offered, the respondent was willing to transfer that part of the suit property which will be allowed to be retained by him. Accordingly, an Agreement for Sale was executed by the respondent in favour of the third appellant and the third appellant was put in possession. It was stated that the respondent purchased a stamp paper for executing the said agreement and handed out the same to the first appellant. It is stated that the respondent : 4 : 4 : 4 : voluntarily signed the said agreement. 5. The first appellant alleged that on 29th December, 1984 in respect of land bearing survey No.84, alongwith the other vendors, the respondent executed an irrevokable Power of Attorney in favour of appellant No.2 and one Prakash Kodre. On the basis of the said Power of Attorney, the appellant No.2 appointed the first appellant and Shri V.S.Chitale, advocate to appear in the proceedings under the said Act of 1976. It is alleged that various amounts were accepted by the respondent under the Agreement for Sale from the third respondent. It is stated that after the payment of the entire consideration in respect of the suit property described in paragraph No.1a and 1b of the plaint, the second appellant obtained permission of the competent authority for the transfer of the suit property and accordingly, the second appellant executed registered Sale Deeds on 01st November, 1990 and on 20th September, 1989 in favour of the third appellant. The written statement of the first appellant was adopted by the other appellants. 6. The learned trial Judge held that the respondent has proved that the first appellant had taken undue advantage of his position and got the Power of Attorney : 5 : 5 : 5 : and an Agreement for Sale executed from the respondent. The learned trial Judge held that the respondent has proved that the first respondent deceived him. The learned trial Judge held that the appellants have failed to establish their case as regards payment of amounts of Rs.43,000/-, Rs.56,000/- and Rs.10,000/- as alleged in the written statement of the first appellant. The learned trial Judge held that the respondent-plaintiff was in possession of the suit property. Therefore, the learned trial Judge granted declaration of ownership as well as a decree for perpetual injunction. In an appeal preferred by the appellants, the decree passed by the trial Court has been confirmed by the learned 8th Adhoc District Judge, Pune by judgment and order dated 15th October, 2007. The learned Additional District Judge confirmed the findings of fact recorded by the trial Court. The learned Judge held that the respondent-plaintiff has proved that the first appellant had taken an undue advantage of his position as an advocate and has got executed Power of Attorney and Agreement for Sale from the respondent. The other findings recorded by the trial Court have been confirmed by the first Appellate Court. 7. Shri Godbole, learned advocate appearing for the appellants has taken me through the pleadings and notes : 6 : 6 : 6 : of evidence. He pointed out that the Agreement for Sale in dispute was executed on 14th October, 1984, the Power of Attorney was executed on 29th December, 1984 and the first appellant was engaged as an advocate alongwith Shri Chitale by the constituted attorney of the respondent to appear in proceedings under said Act of 1976. He submitted that the respondent has not proved that he himself had appointed the first appellant as his advocate for representing him before the competent authority under the said Act of 1976. He submitted that there was no prayer made in the suit for declaration as regards the Agreement for Sale and the Power of Attorney and though such declaration was not sought, the Courts below have held that the Sale Deeds executed on the basis of the Power of Attorney and the Agreement were void ab initio. He submitted that the respondent had admitted the execution of the Agreement for Sale and the Power of Attorney and therefore, the trial Court committed an error by putting a burden on the appellants to prove that the respondent executed the Agreement for Sale and the Power of Attorney. He submitted that the respondent had pleaded the existence of fraud and therefore, the burden was on the respondent to establish the said plea. He submitted that as the entire burden was on the respondent, the Courts below could not have found fault with the appellants on the ground that the : 7 : 7 : 7 : first appellant has not stepped in to witness box. He placed reliance on a decision of the learned single Judge of this Court in the case of Shrimati and others Vs. Sudhakar R. Bhatkar and others (AIR 1998 Bombay Page 122). He submitted that in view of recitals in the Agreement for Sale and the Sale Deed it was obvious that the respondent had parted with possession of the suit property in favour of the third appellant. 8. I have considered the submissions. The Appellate Court has referred to the Agreement for Sale dated 14th December, 1984 at Exhibit 114 which shows that it was executed by Dattatraya Magar, Baban Magar and Subhash Magar in respect of land bearing survey No.84, Hissa No.14 and land bearing survey No.84, Hissa No.26 which are not the suit properties. The respondent is shown to have signed the said document as a consenting party. Therefore, the Appellate Court rightly held that the appellants have not established that the respondent executed an Agreement for Sale in respect of the suit property. 9. The Power of Attorney on which reliance is placed by the appellants has been allegedly executed by the respondent in favour of the second appellant and one Prakash Sakharam Kodre. The respondent stepped into : 8 : 8 : 8 : witness box and stated that he has not even seen the second appellant. In the cross-examination of the respondent he was confronted by showing the alleged Power of Attorney. However, the respondent maintained the case made out by him that he had not executed the Power of Attorney. It must be stated here that the second appellant is the first appellant’s sister’s son. It must be stated here that the first appellant is a practising advocate. He is shown as a partner of the third appellant M/s.Bhusari and Associates in the cause title of the plaint. 10. The Appellate court has observed that even the original Sale Deeds allegedly executed by the second appellant in his capacity as the constituted attorney of the respondent in favour of the third appellant have not been produced and the appellants have produced only the certified copies of Index II relating to the said Sale Deeds. It must be stated here that the second appellant is the close relative of the first appellant. The first appellant in his written statement has come out with a case that the first appellant represented the third appellant-partnership firm. It was his case that only after the execution of the Power of Attorney, he was appointed as an advocate by the Constituted Attorney. The respondent all along disputed the execution of the : 9 : 9 : 9 : Power of Attorney. In this context, the fact that none of the appellants stepped into witness box assumes importance. Even the other alleged constituted attorney Prakash Kodre was not examined as a witness by the appellants. 11. The first appellant in his written statement has stated that on the behalf of third appellant he has negotiated with the respondent. His contention is that he had appeared as the advocate of the respondent before the competent authority only after the execution of the Power of Attorney by the respondent and he was engaged by the appellant No.2 in his capacity as the constituted attorney of the respondent. There are serious allegations made against the first appellant. The execution of the Power of Attorney by the respondent is not proved by the examining the alleged constituted attorneys. It is surprising that the first appellant who is a practising advocate did not step into witness for box denying the specific allegation made against him of practising fraud. 12. In the circumstances, the Courts below and especially the Appellate Court were right in drawing an adverse inference against the appellants on account of their failure to enter the witness box. The Appellate : 10 : 10 : 10 : Court found that as alleged Agreement for Sale has not been proved by the appellants, payment of sum of Rs.43,000/- by the third appellant to the respondent at the time of execution of Agreement has not been proved. The other case of the appellants was that further amounts were paid by the third appellant through the second appellant. The second appellant did not step into witness box to prove that in turn he paid the said amounts to the respondent. 13. The original Sale Deeds are not produced. In any event, unless the execution of Power of Attorney was proved, the alleged Sale Deeds will not have the effect of transferring any right, title or interest of the respondent. Therefore, it cannot be accepted that the respondent had parted with possession. 14. Therefore, the Courts below have found that the respondent continues to be the owner of the property and therefore, relief of declaration and injunction has been granted in his favour. 15. I find no reason to interfere with the concurrent findings of fact especially when the appellants have avoided to enter the witness box. No substantial question of law arises. Second Appeal is : 11 : 11 : 11 : dismissed. No orders as to costs. Judge. Judge. Judge.