1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.147 OF 1993. Chandrakant Kerba Ganjewar, Aged 40 years, Occ. Agriculture, R/o Kandhar. ... Appellant. Versus 1. Mohd.Serwar Chandsab, Aged 70 years, Occ.Agriculture, Under village Lath (Kd), Tq. Kandhar. 2. Allauddin S/o Mohd. Serwar, Aged 25 years, Occ.and R/o as above. 3. Khudboddin S/o Mohd. Serwar, Aged 30 years, Occ.and R/o as above. ... Respondents. ... Mr.M.V.Deshpande, advocate for the appellant. Mrs.A.N.Ansari, advocate for the Respondent Nos.1 to 3. ... CORAM : V.R.KINGAONKAR,J. Date : 17.11.2009. ORAL JUDGMENT : 1. This Second Appeal arises out of 2 concurrent judgment rendered by first appellate Court in Appeal bearing RCA No.288/1986, confirming trial Court's judgment in suit for injunction (RCS No.92/1984). 2. The appellant is original plaintiff. He filed suit for injunction simpliciter. His case before the trial Court was that he purchased the suit land from the defendant No.1 for consideration of Rs.2,000/- by virtue of a sale deed dated4.6.1974. He was inducted in lawful possession of the suit land as a purchaser. He continued to remain in possession thereof as its owner. However, the defendant Nos.2 and 3, who are sons of the defendant No.1, started causing obstruction in his lawful possession in the last week of June 1984. Consequently, he sought the injunction decree. 3. By their joint written statement (Exh. 34), the defendants resisted the suit. They submitted that the defendant No.1 borrowed Rs. 2,000/- (Rupees two thousand) from the plaintiff and had executed the sale deed by way of security 3 for repayment of the loan. They further submitted that actual possession of the suit land was never delivered to the plaintiffs. They categorically denied the averment that he was in lawful possession of the suit land as on the date of the suit. They submitted that they are in possession of the suit land notwithstanding execution of the sale deed dated 25.7.1984. Hence, they sought dismissal of the suit. The trial Court as well as the first appellate Court came to the conclusion that though execution of the sale deed dated 25.6.1984 is duly proved by the plaintiff (appellant), yet, he could not prove that he was in actual possession of the suit land as on the date of the suit. Hence, the suit was dismissed. 4. While admitting the Second Appeal, the then Hon'ble Judge (Halbe,J.) treated grounds Nos.3,4,7 and 12 shown in the Appeal Memo as the substantial questions of law. I deem it to club these grounds together and redraft the substantial question of law as follows : 4 "(i) Whether in the facts and circumstances of the present case,the Courts below rendered perverse finding as regards the factum of lawful possession as on the date of suit and ignored recitals of the sale deed in question which indicated delivery of possession, and thereby reached erroneous conclusions.?" 5. Before I proceed to consider merits, it may be stated that the grounds shown in the Memorandum of Appeal only relate to appreciation of evidence without any semblance with the requirement of Section 100 of the C.P.C. The substantial question of law is formulated by clubbing the grounds pertaining to appreciation of the evidence. It is significant to note that both the Courts have rendered concurrent findings to the effect that the oral and documentary evidence tendered by the plaintiff (appellant) is insufficient to prove his lawful possession as on the date of the suit. The mere fact that execution of the sale deed (Exh.59) is proved by 5 attesting witness, namely, PW 2 Narayan by itself is insufficient. This is not a suit for declaratory relief in respect of ownership rights claimed on the basis of the sale deed. The question of title is incidental. The prominent question involved is in respect of the plaintiff's lawful possession is on the date of the suit. 6. Coming to the oral evidence tendered by the plaintiff, it may be stated that without giving any tangible reason, the plaintiff ducked himself from the witness box. On his behalf PW 1 Narayan S/o Prabhunath narrated details of the transaction as a Power of Attorney holder. He narrated as to how the transaction of sale was brought into existence. He states that the suit land is in possession of the plaintiff. He admits that he is servant of the plaintiff since about 40 years. His version purports to show that the plaintiff is a licensed money lender and also deals in other business like vending of clothes and contractorship. It is explicit that PW 1 Narayan S/o Prabhunath is the trusted servant of 6 the plaintiff and, therefore, supported his case. He admitted that he was unable to tell whether the suit land comprises of two fragments of east- west in length or of south-north in length. His version purports to show that he had occasion to visit the suit land only for 2/4 times after the sale deed. He further admits the fact that description of the suit land by boundaries and also that it consists of two fragments is not stated in the document, for which omission there is no explanation. 7. The Apex Court in "Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others" AIR 2005 Supreme Court 439, observed : "Order 3 Rule 1 1 and 2 empowers the holder of power of attorney to 'act' on behalf of the principal. The word 'acts' employed in O.3, Rr. 1 and 2, confines only in respect of 'acts' done by the power of attorney holder in exercise of power granted by the instrument. The term 'acts" would not 7 include deposing in place and instead of the principal. If the power of attorney holder has rendered some 'acts' in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined." In view of the legal position enunciated as above, PW 1 Narayan S/o Prabhunath was incompetent to narrate in respect of the transactions and the nature of dealings between the parties. The version of PW 2 Narayan S/o Manik relates to attestation of the sale deed (Exh.59). He admits, however, that in his presence only there was talk regarding the price of the land. He further admits that he has no 8 knowledge whether the plaintiff got executed the sale deed from defendant No.1 as security for the loan given to him. The third witness of the plaintiff is PW 3 Digambar. He attempted to corroborate case of the plaintiff as regards actual possession. Admittedly, he does not hold any land adjoining to the suit land. He further admits that the defendant No.1 is holder of another adjoining land. According to him, the plaintiff's servant used to work in the suit land and those agricultural servants are inhabitants of Kandhar. He further admits that he does not know names of the agricultural servants. 8. The testimony of DW 1 Mohd.Serwar lends corroboration to his defence. The entries in 7/12 extract (Exh.68) would show that name of DW Mohd. Serwar (defendant No.1) appeared in the column of cultivation and ownership till 1980-1981. For the first time, in the year 1981-82, name of the plaintiff was mutated in the column of cultivation. The plaintiff has failed to prove as to when he applied for mutation entry and as to why there was delay in recording of the 9 entries. The recitals of the mutation entry No. 436 (Exh.67) would show that the mutation was sanctioned in the year 1976. Why there was delay of couple of years in seeking such mutation entry is inexplicable. 9. Considering the concurrent findings of facts which are based on material placed on record and the quality of evidence tendered by the plaintiff, I do not think that the Courts below have committed any substantial error while appreciating the evidence. The Apex Court in "Gurdev Kaur and others Vs. Kaki and others" AIR 2006 Supreme Court 1975, held that the findings of facts, even though may be erroneous or grossly incorrect, can not be assailed in the Second Appeal. Considering such legal position and the manner in which both the Courts have evaluated the evidence, I do not find any merit in the Second Appeal. 10. In the result, the Second Appeal fails 10 and is dismissed. No costs. (V.R.KINGAONKAR,J.) asp/office/sa14793