1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 453 OF 2008 SECOND APPEAL NO. 453 OF 2008 SECOND APPEAL NO. 453 OF 2008 Shri Shankar Bapu Pisal ... Appellant (Org. Plaintif) Versus Shri Yuvraj Yeshwant Bhosale & Ors. Respondents (Org. Defendants) Shri V.S.Talkute, Advocate, for the appellant. Mr. P.B.Shah, Advocate, for respondent No.1. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE: 24th July, 2008. DATE: 24th July, 2008. DATE: 24th July, 2008. P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. 2. The appellant before this Court is the original plaintiff and the respondents are the legal representatives of the original defendant Yeshwant. 2 According to the plaintiff, when he was minor, a proceeding was going on before the Tenancy Tribunal and, therefore, the defendant Yeshwant was acting as his guardian ad-litem in that matter. In that matter, the plaintiff was declared to be deemed purchaser and on 25.3.1974, a certificate under Section 32-M of the Tenancy Act was issued in his favour. On 8.8.1975, he also got possession. According to the plaintiff, thereafter, Yeshwant was holding power of attorney on his behalf and he had obtained signatures of the plaintiff on several papers. He contends that initially in 1976, the defendant tried to get half share in the property mutated in the name of his daughter, but after an objection was taken by the plaintiff, that entry was deleted. He further contends that in 1982, the defendant obtained signatures of the plaintiff on 5.5.1982 on stamp papers and on the basis of that he got prepared a sale deed of the suit land i.e. 2 annas share in the land. In 1987, the plaintiff filed the suit No.23/87 for declaration and perpetual injunctiion. He pleaded that he was in possession of the property but the defendant was claiming title over the suit property on the basis of the sale deed, which he had got prepared by misusing the power of attorney and by playing fraud and without paying consideration. At that stage, he also made an application for temporary injunction and 3 temporary injunction was granted in his favour restraining the defendant from causing any interference in his possession over the suit land. That order of temporary injunction continued during pendency of the suit. The plaintiff sought declaration of his title and declaration that the sale deed dated 5.5.1982 in favour of the defendant is illegal, bogus and without consideration and it is not binding on the plaintiff. He also sought perpetual injunction restraining the defendant from causing any interference in his possession. 3. The defendant contested the suit and denied all the adverse allegations. According to him, he had paid consideration amount to the plaintiff and the plaintiff had executed the sale deed in respect of the suit land in his favour. According to him, this sale deed was executed on the basis of the agreement which had taken place in 1974. He also claimed that he was in possession of the suit land continuously and openly since 1974 when the agreement had taken place. 4. Several issues were framed by the trial Court and after hearing the evidence for the parties, the learned trial Court dismissed the suit. The plaintiff preferred Regular Civil Appeal No.133 of 2000. That Appeal was 4 also dismissed. Thus, the plaintiff has preferred the Second Appeal against the concurrent findings rendered by both the Courts below. 5. The record reveals that before the evidence could be recorded, the defendant had died and his L.Rs. were brought on record. The record also reveals that the plaintiff himself never entered into the witness box. However, on his behalf, his power of attorney holder was examined as a witness. It is also revealed that when the suit was filed by the plaintiff in 1987, he was aged about 40 years. It means when the disputed sale deed was executed, he was aged about 35 years. Therefore, it is impossible to hold that the defendant was acting as his guardian at that time. He could be his guardian till the age of 18 or maximum 21 or at the most it could be said that he might have continued to look after the litigation on his behalf till the proceedings before the Tenancy Court had continued. According to the plaintiff, in 1974, certificate under Sec.32-M was issued and he had become owner of the land. According to him, he also got possession in 1975. Thereafter, there was no reason or circumstance under which the defendant could be in fiduciary relationship. The power of attorney for the plaintiff, who was examined as a witness before the trial Court, admitted that the 5 defendant had executed the sale deed dated 5.5.1982 on the basis of an agreement for sale which had taken place in 1974. He also admitted that sale deed was registered. He also admitted signatures of the plaintiff on the stamp papers which were used to write the sale deed. He also admitted that the sale deed bears the signatures of the attesting witnesses named therein. He also admitted that the plaintiff had no dispute with the bond writer, the stamp vendor or the attesting witness. After death of defendant, it was impossible for his L.Rs. to give direct evidence for the payment of price. In the given circumstances, the plaintiff was the only person, who was aware about the alleged facts and circumstances, but as pointed out above, he did not enter the witness box to depose those facts. It is settled position of law that the power of attorney holder of the plaintiff cannot give evidence about facts which are exclusively within the knowledge of the plaintiff and about facts which are not personally known to the power of attorney. Therefore, the power of attorney holder of the plaintiff was not in a position to give evidence as to what had transpired between the plaintiff and the defendant. 6. The learned Counsel for the appellant vehemently contended that in view of the provisions of Section 111 6 of the Evidence Act, the burden of proof should have been cast upon the defendant and that the issues were not properly framed. Section 111 provides that where there is a question as to the good faith of a transaction between the parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. In view of the facts and circumstances noted above, it cannot be said that the defendant was in a position of active confidence in 1982 when the sale deed was executed because the plaintiff was not a minor, but a person aged about 35 years at that time. 7. The learned Counsel for the appellant also contended that as the land had come to the plaintiff under the provisions of Tenancy Act, the sale deed is not valid and is in contravention of the provisions of the Tenancy Act. However, it appears that on this very ground, the plaintiff had challenged the transaction before the authorities under the Tenancy Act and his contention was rejected. 8. Lastly, the learned Counsel for the appellant contended that the trial Court had noted that since 1987, the plaintiff was in possession of the suit 7 property and according to him, the trial Court should have passed the decree at least to the effect that the defendant should not disturb the possession of the plaintiff without following due process of law. However, the learned counsel for the respondent rightly pointed out from the same judgment that the plaintiff’s possession was protected since 1987 on the basis of the temporary injunction granted by the trial Court. 9. Taking into consideration the facts and circumstances, I find that no substantial question of law is involved in the present Appeal. Therefore, the Appeal stands dismissed. 10. As the Appeal itself is dismissed, the Civil Application No.1101/2008 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)