1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 375 OF 2010 [Abaji Marotrao Satfale Vs. Sureshrao Wamanrao Gokte] Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's Orders Shri H.M.S. Athar Adv for appellant. Shri R. Vyas Adv for respondent. CORAM: .R. M. SAVANT J. Dated: 3 rd FEBRUARY, 2011. The above Second Appeal takes exception to the judgment and decree dated 05.08.2009 passed in Regular Civil Appeal No. 245 of 2004, by which the decree passed by the trial Court came to be set aside. Appellant is the original plaintiff who filed Special Civil Suit No. 369 of 1997 for declaration, mandatory injunction and possession. The suit property is plot bearing no. 18 Kh. No. 600/1, Mouza 224 P. H. No. 10 of Nagpur. It was the case of the plaintiff that the defendant no.1 who is the son of his sister one Ithabai wd/o Wamanrao Gokte on 10.06.1996 2 under the threat and by force took the plaintiff to the Sub Registrar’s office at Mahal Nagpur and obtained his signature on the documents which were already prepared without reading and without explaining the contents of the said documents. It was further the case of the plaintiff that on or about 13.06.96 plaintiff came to know that defendant no.1 has got executed one Mukhtarnama or Power of Attorney in his favour in respect of the suit property. The said power of attorney according to plaintiff was obtained by the defendant no.1 by force and coercion. Plaintiff therefore informed the housing society by letter dated 13.07.1996 regarding obtaining of the said power of attorney by defendant no.1 and requested the housing society not to effect any change or transfer in respect of the suit property. Plaintiff was thereafter shocked and surprised to receive a notice from the Assistant Tax Assessor and Collector thereby inviting objection to the mutation of the name of defendants 2 and 3 on the basis of the sale deed dated 17.06.1996 allegedly executed by the defendant no.1. It was the case of the plaintiff that at the said time he came to know about the execution of the sale deed dated 17.06.1996. The plaintiff thereafter made enquiries with the Sub Registrar’s office and came to know that the sale deed was executed by the defendant no. 1 in favour of the defendants 2 and 3 on the basis of the said power of attorney. It was falsely mentioned in the sale deed that agreed consideration was Rs. 1,00,000/- and the same was paid over to the plaintiff. Since according to plaintiff defendants 2 and 3 encroached upon 3 the plot by starting construction illegally and unauthorizedly, he filed the said suit. The defendants filed their Written Statement and took an objection regarding the jurisdiction of the Civil Court to try the said suit in view of the fact that the concerned plot belonged to a cooperative society. It was the case of the defendant that the plaintiff executed registered power of attorney on 10.06.1996 in favour of the defendant no.1 voluntarily and out of his free own will authorizing the defendant no.1 to sell the suit property. Accordingly the suit plot was sold to the defendants 2 and 3 for a consideration of Rs. 1,00,000/- which consideration amount is received by plaintiff at his residence and the defendant no.1 had executed the sale deed as power of attorney holder of the plaintiff. It was the case of the defendants that since the plaintiff had received the full consideration the sale deed is binding on the plaintiff. It was stated that the defendants 2 and 3 have constructed the house and have taken the water connection as well as electric meter for which they have spent an amount of Rs. 2,00,000/- and that they are residing on the suit plot as joint owners. The parties went to trial. Trial Court on the basis of the evidence on record came to the conclusion that the plaintiff has proved ownership of the suit plot and the plaintiff has proved that defendant no.1 has got executed the registered power of attorney by coercion and force. The trial Court also held that the power of attorney in view of the fact that it was got executed 4 by coercion and force was illegal and not binding upon the plaintiff. Trial Court therefore decreed the suit and directed defendants to handover possession of the suit plot after removal of any construction thereof. Aggrieved by the decree passed by the trial Court the defendants 2 and 3 filed an appeal being Regular Civil Appeal No. 245 of 2004. The First Appellate Court on re-appreciation of the evidence on record came to a conclusion that the said power of attorney executed on 10.06.1996 could not be said to have been executed on account of coercion or fraud. The First Appellate Court while arriving at the said conclusion took into consideration the fact that the sale deed executed was allegedly got executed by coercion and fraud on 10.06.1996. The plaintiff had filed the complaint with the housing society only on 13.07.1996. First Appellate Court was of the view that there was no explanation given by the plaintiff as to why he had kept quiet till 13.07.1996. The First Appellate Court also recorded a finding that evidence of the plaintiff about coercion and fraud is absolutely vague. The First Appellate Court also took into consideration the fact that the contents of the complaint made to the society vide Ex. 36 were totally missing in the averments in the plaint. First Appellate Court was also of the view that the averments necessary to constitute fraud were missing in the pleadings. First Appellate Court took into consideration the fact that the plaintiff did not utter a single word before the Sub Registrar of not having recovered any consideration from the defendant no.1 and why he 5 did not inform the Sub Registrar is also absent from the pleadings. First Appellate Court also considered the aspect of the plaintiff approaching police only on 12/02/1997 in respect of the execution of the power of attorney, this was almost after a period of 8 months after the said power of attorney was executed. The First Appellate Court therefore on consideration of the material on record observed that the trial Court had erred in decreeing the suit by merely relying upon the evidence of the plaintiff in the absence of the defendants putting up their case in the cross examination of the plaintiff, the First Appellate Court was of the view that nevertheless the plaintiff was not relieved from discharging the onus of proving coercion or fraud as averred by him. The First Appellate Court took into consideration the fact that force and coercion was not proved by the plaintiff and recorded a finding that it would necessarily have to be held that plaintiff has received the amount of consideration. The First Appellate Court therefore has recorded a finding of fact as regards the absence of coercion and force in the execution of the power of attorney and the receipt of the consideration by the plaintiff. Considering the said finding of fact, in my view no substantial question of law arises for consideration in the above Second Appeal which is accordingly dismissed. JUDGE svk 6 7 8 9