1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 395 OF 2007 (Purushottam Laxmanrao Bagde and others .v. Shankarrao Sadashiorao Diwre and others) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri N.W. Sambre, Advocate for the appellants. Shri V.M. Deshpande, Advocate for the respondents. CORAM : C.L. PANGARKAR, J. 23RD JANUARY, 2008. Heard the learned Counsel appearing on behalf of the respective parties. This Second Appeal is filed by the original plaintiffs. The original plaintiffs/appellants had instituted a suit for setting aside alienation which was allegedly effected by the defendant No.2. Before this suit came to be instituted, the defendant No.1 had instituted a suit against the defendant No.2 for specific performance of the contract of sale of the suit property. That suit filed by the defendant No.1 against defendant No.2 came to be decreed. In pursuance of the said decree, the Court had executed a Sale Deed in favour of the defendant No.1 on behalf of the defendant No.2. The decree came to be passed on 26.08.1968. A sale deed came to be executed on 03.04.1969. The defendant No.1 2 was put in possession of the suit property. It is this sale which is effected on account of passing of decree for specific performance which is challenged before the Court by filing the suit. It was contended by the plaintiffs that there was no legal necessity to the defendant No.2 to sell the suit property. He, in fact, sold the suit property since he was addicted to vices of gambling etc. He was spend thrift and, therefore, he was required to sell the property. It was on this ground all the sons of defendant No.2 and his wife challenged this alienation which is effected on account of decree of specific performance. The respondent No.1 contested the suit and contended that the property was sold by the defendant No.2 for legal necessity. The learned Judge of the trial Court found that the sale was not effected for the legal necessity and she set aside the decree in favour of the defendant No.2 and directed the defendant No.1 to file a suit for partition. The defendant No.1, therefore, preferred an appeal before the District Judge. The District Judge allowed the appeal and dismissed the suit. He found that there was a legal necessity and the defendant No.2 had proved that there was legal necessity and plaintiffs had failed to prove that the defendant No.2 was addicted to any kind 3 of vices. The learned Counsel for the plaintiffs/ appellants contended that this appeal needs to be admitted on two grounds. Firstly, that the finding of the first appellate Court that there was legal necessity is not correct because of the fact that the burden has not been discharged by the defendant No.1; and secondly on the ground that the evidence of holder of power of attorney for defendant No.1 should not have been accepted by the Court in view of the decision rendered by the Supreme Court in the case of Janki Vashdeo Bhojwani and another .v. Indusind Bank Ltd. and others (reported in 2005(1) Mh.L.J.,1170). Coming to the first submission, it has to be mentioned that the defendants have come out with a case that the suit property was sold by the defendant No. 2 for legal necessity. It cannot be disputed that the burden of proof lies on the defendants. Shri V.M. Deshpande, the learned Counsel for the respondents submits that the burden has been properly discharged inasmuch as the evidence of DW-1 has been rightly appreciated by the learned District Judge. I was taken through the evidence of DW-1 (Ramdas). He has stated that the defendant No.2 had come to him and his brother with a request to purchase the plot on the 4 ground that he had suffered loss in his business and he has to maintain large family. He has stated that since the defendant No.2 was in need of money and he wanted to sell the plot because of the fact that he suffered loss, they decided to purchase the plot. The plaintiffs have come out with a case that the defendant No.2 was addicted to vices of gambling. The evidence that has been tendered by the plaintiffs in this regard is of the plaintiff No.5- Sanjay. Sanjay's date of birth as can be seen is of the year 1963. This transaction had taken place in the year 1967 and obviously he could not have personal knowledge about the transaction or the situation prevailing then. His evidence, therefore, carries no value. Not even a single instance of defendant No.2 being prosecuted for gambling etc. has been quoted. It is clear from the judgment of the first appellate Court that the defendant No.2 has sold large number of properties right from 1967 to 1987. The plaintiffs have not challenged the alienation of any other property except this and this suggests that the defendant No.2 was required to sell the property frequently to meet the expenses of the family and, therefore, the plaintiffs did not feel it necessary to challenge the other alienation of the property. In the circumstances, I do not find that the 5 learned Judge of the first appellate Court committed any error in rejecting the testimony of the plaintiffs' witness that the defendant No.2 was addicted to any kind of vices. Since it is not prima facie even shown that the defendant No.2 had any kind of vices etc. and it is positively stated by the DW-1 for the defendants that the defendant No.2 had come with a request to purchase the property because he had suffered loss in the business, the learned Judge of the first appellate Court rightly held that the sale was for legal necessity. I do not find that there is any misappreciation of evidence. The next point that is urged is that the evidence of DW-1 for defendants should not have been accepted because he was holder of power of attorney. This submission was made on the basis of the decision of the Apex Court referred to above. In this regard, it may be observed that the facts of the reported case and the case at hand are totally different. In the instant case, it is deposed by the witness that the defendant No.2 had approached him as well as his brother i.e. defendant No. 1 and negotiations have taken place in his presence and further he has stated that the entire property has now fallen to his share in the partition. In view of this, it cannot be said that the witness was deposing only as a power of attorney but he was deposing as he was having 6 personal knowledge of the facts. In view of this, the decision, as cited by Shri N.W. Sambre, the learned Counsel for the appellants, has no bearing. There is no reason to reject the evidence of DW-1 (Ramdas). It was rightly appreciated by the first appellate Court. I see no substantial question of law involved in the appeal. The appeal is dismissed in limine. JUDGE *rrg.