1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Second Appeal No.522/2010 ( Sau. Sarjabai w/o Govindrao Shivarkar & another ..V/s.. Sopan Bansi Fulmali & others ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. Pradeep Mahalle, Adv. for appellants. CORAM : SMT. V.A NAIK, J. DATE : 6th DECEMBER, 2010. Heard Shri Mahalle, learned counsel for the appellants. The appellants are the original plaintiffs in R.C.S. Nos.14/1995 and 15/1995. Similarly, respondent no.1 Sopan is the plaintiff in R.C.S. No.67/1995. It was the case of the respondent to this appeal in R.C.S. No.67/1995 filed by him for specific performance of contract that he had entered into an agreement with one Ramabai on 26/3/1992 for purchasing the suit property. The respondent nos.2 to 6 to this appeal are the legal heirs of Ramabai. It was pleaded by plaintiff Sopan in R.C.S. No. 67/1995 that Ramabai had leased out the suit property in his favour for the agricultural year 1992  1993 on Batai basis. It was pleaded by plaintiff Sopan in 2 R.C.S. No.67/1995 that Ramabai had executed an agreement of sale on 26/3/1992 for a consideration of Rs.60,000/- and Sopan paid an earnest amount of Rs.20,000/- on the same day. Though the sale deed was to be executed on 31/3/1993, Sopan became aware that Ramabai had sold the suit property to the defendant nos.2 and 3/appellants on 2/2/1993. It was pleaded by plaintiff Sopan in R.C.S. No.67/1995 that the sale deeds dated 13/4/1992 executed in favour of appellants Sarjabai and Santosh were void and illegal. Sopan pleaded that he was ever ready and willing to perform his part of the contract and a decree for specific performance of contract be passed in his favour. Sopan had also pleaded in the plaint that he was in possession of he suit property even before the execution of the agreement of sale dated 26/3/1992 in view of the lease for the agricultural year 1992  1993. Plaintiff Sopan in R.C.S. No.67/1995 had joined Sarjabai and Santosh, the present appellants, as defendants to the suit along with Ramabai and sought a direction against all the defendants to execute the sale deed in favour of Sopan. Ramabai filed the written statement and denied the claim of plaintiff Sopan for the specific 3 performance of contract. She denied the execution of the agreement of sale and also denied the acceptance of the earnest amount. It was pleaded by Ramabai that she had executed two different sale deeds in favour of defendant nos.2 an 3 namely Sarjabai and Santosh on 13/4/1992. She sought for the dismissal of the suit. The appellants to this appeal/defendant nos. 2 and 3 in R.C.S. No.67/1995 also denied the claim of Sopan and pleaded that they were bonafide purchasers for value without notice and since Sopan was in possession of the property they were entitled to the possession of the same. The defendant nos.2 and 3 also sought for the dismissal of the suit. The appellants, Sarjabai and Santosh filed separate suits bearing R.C.S. No.14/1995 and R.C.S. No.15/1995 for possession against Sopan. All the three suits were tried together. The trial Court by the judgment dated 6/1/2003 decreed the suit filed by Sopan for specific performance of the contract and directed all the defendants to execute a registered sale deed in his favour. The trial court directed Sopan to deposit the balance consideration of Rs.40,000/- in the Court and directed the defendant nos.2 and 3/present 4 appellants Sarjabai and Santosh to withdraw the amount of Rs.40,000/- deposited by plaintiff Sopan in the trial Court as they had paid the consideration to Ramabai while executing the sale deeds dated 13/4/1992. While passing a decree to the aforesaid effect, the trial Court held that Sopan has succeeded in proving that Ramabai had agreed to sell the suit property to him by the agreement executed in March 1992. The trial Court held that the earnest amount of Rs.20,000/- was paid and the balance consideration of Rs.40,000/- was payable at the time of execution of the sale deed. The Court held that Sopan was in possession of the suit property and was ready and willing to perform his part of the contract. The trial Court held that the defendant nos.2 and 3, Sarjabai and Santosh, were not bonafide purchasers for value without notice. Since the trial Court held that the defendant nos.2 and 3 had purchased the suit property from the defendant no.1 Ramabai, the trial Court permitted the defendant nos.2 and 3/present appellants to withdraw the balance consideration of Rs.40,000/- which was payable by Sopan to Ramabai as Ramabai had illegally sold the suit property to defendant nos.2 and 3 on 13/4/1992. The findings 5 recorded by the trial Court were confirmed by the first Appellate Court in an appeal filed by Sarjabai and Santosh. It is needless to mention here that both the Courts had dismissed the suit filed by Sarjabai and Santosh for possession of the suit property while while decreeing the suit filed by Sopan for grant of a decree for specific performance of contract. The findings recorded by both the Courts on the issues of execution of the valid agreement of sale in favour of Sopan in March 1992, the payment of earnest amount of Rs.20,000/-, the possession of the property, and the issue whether the defendant nos.2 and 3 Sarjabai and Santosh were bonafide purchasers for value without notice etc. are pure findings of facts based on a proper appreciation of the material evidence on record. Both the Courts rightly held that Sarjabai and Santosh were not bonafide purchasers for value of property without notice as both of them failed to enter into the witness box and had merely examined their power of attorney holder. The question whether a person has bonafide performed a particular act will be within the knowledge of that person only and a power of attorney holder cannot tender evidence to state that the other person acted 6 bonafide. There is therefore nothing wrong in the finding that Sarjabai and Santosh were not bonafide purchasers for value without notice, specially when this finding is not recorded only for the aforesaid reason but by also considering the other evidence on record. The other findings as regards the valid execution of an agreement of sale, the acceptance of earnest amount and as regards the readiness and willingness of the plaintiff to perform his part of contract; are based on a proper appreciation of the evidence on record and they do not give rise to any substantial question of law. The Courts exercised the discretion in an extremely judicious manner to decree the suit of plaintiff Sopan for specific performance of contract and for dismissing the suit filed by Sarjabai and Santosh for possession. The judgment reported in A.I.R.2002 (S.C.) 117 and relied on by the learned counsel for the appellants cannot be made applicable to the facts of this case. Since no substantial question of law arises for consideration in the second appeal, the same is dismissed with no order as to costs. Judge Tambaskar.