1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 950 OF 2007 WITH CIVIL APPLICATION NO.1709 OF 2007 Anil Anant Karkhanis : Appellant versus Subhash Anant Karkhanis and ors. : Respondents. Shri. Uday Warunjikar i/by Shri P.R.Arjunwadkar for the Appellant Shri.P.S.Dani, for the Respondent. CORAM : R.M.SAVANT, J. DATED : September 02, 2008 P.C. 1. The above Second Appeal takes exception to the Judgment and Decree dated 24/09/2007 passed by the learned Ad-hoc District Judge (I), Raigad-Alibag by which the Judgment and Decree dated 8/3/2002 passed by the learned Joint Civil Judge, Senior Division, Alibag in Regular Civil Suit No.65/1999 came to be confirmed. 2 2. The Appellant is the original Plaintiff who has filed a suit being Regular Civil Suit No.65 of 1999 for declaration and cancellation of gift deed dated 22/1/1998 and for injunction in respect of the suit property bearing Survey No.46/1, admeasuring 3 H. 33 R. It was the case of the Appellant/Plaintiff that since he being employed at Mumbai and staying at Navi Mumbai and was unable to look after his own property as well as the joint family property, he had executed a Power of Attorney in favour of his brother – the Respondent, i.e. the original Defendant No.1, in the year 1988. It was further the case of the Appellant/Plaintiff that the Respondent/Defendant No.1 mis-used the trust and faith reposed in him and gifted the said suit property on the basis of the said Power of Attorney. It was further the case of the Appellant/Plaintiff that the scope of the Power of Attorney did not confer the power to grant a gift on behalf of the Plaintiff. It was further his case that the Respondent/Defendant No.1 by executing the said gift deed dated 22/1/1998 had gifted the suit property in violation of the said Power of Attorney. 3 3. The Respondent/Defendant No.1 filed his written statement in the said suit. The Respondent/Defendant No.1 denied that the said Power of Attorney does not confer the power to grant a gift on behalf of the Plaintiff/Respondent. It was further contended by the Defendant No.1 that the said gift deed has been executed by him as per the wishes and willingness of the Plaintiff and that the Defendant No.1 had acted bonafide and as per the directions of the Plaintiff. 4. The parties went to trial. The trial Court on the basis of the oral and documentary evidence held that by executing the said gift deed, the Defendant No.1 had not mis-used the same. The trial Court further held that the said gift deed was executed as per the wishes and willingness of the Plaintiff. The trial Court further held that the Plaintiff was not entitled to the relief sought for in the said suit and, accordingly, dismissed the said suit. 5. The Plaintiff, aggrieved by the same, carried the matter in appeal. The lower Appellate Court confirmed the findings of the trial Court and dismissed the Regular Civil Appeal No.102 of 2002. The 4 Lower Appellate Court, on the basis of the conduct of the parties and attendant circumstances, interpreted the said Power of Attorney conferred the power to execute the gift deed. The Lower Appellate Court took into consideration the fact that pursuant to the compromise arrived at in Regular Civil Appeal No.27 of 1990, which was filed by the Plaintiff against the villagers, the Defendant No.1 had executed a gift deed dated 16/3/1995 in favour of the villagers which was not objected to by the Plaintiff. 6. Both the Courts below have recorded concurrent findings of fact as regards the said Power of Attorney and the gift deed executed by the Respondent/Defendant No.1 pursuant thereto. In my view, the challenge raised in the above Second Appeal does not involve any substantial question of law. The Second Appeal is accordingly dismissed. 7. In view of dismissal of the Second Appeal, the Civil Application No.1709 of 2007 does not survive and the same is disposed of as such. 5 [R.M.SAVANT, J]