sa275.08.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Second Appeal No. 275/2008 Smt. Manda Bapurao Kawalkar & ors. ..vs.. Dr. Moreshwar Marotrao Durge (Dead) thr. LRs Dr. Pushpa Moreshwar Durge & ors. Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr. Kothale, Advocate for appellant. Mr. Lule, Advocate for respondent nos. 3 to 6. Coram: R. K. Deshpande, J. Date : February 1, 2010 1. The trial Court framed issue nos 1 and 2 as under:- 1. Do defts. prove that deceased Tanba had executed the alleged power of attorney in favour of Vishwanath Telange on the basis of which Vishwanath Telange has executed the sale deed of the suit land in favour of defendants. ...In negative. 2. What is the effect of the above issue on the merit of the suit? ...No title passes to defendants on the basis of Spl. Power of attorney allegedly executed by Tanbaji in favour of Vishwanath Telange. 2. Issue no.1 is answered in the negative and in respect of issue no.2, finding is recorded that no title has passed to the defendants on the basis of Special Power of sa275.08.odt 2 Attorney allegedly executed by Tanbaji in favour of Vishwanath Telange. 3. The trial Court, on the basis of these findings, decreed the suit for possession and the defendants are directed to hand over vacant possession of the suit land to the plaintiff. 4. In the appeal preferred by the defendants, the appellant Court considered the point as to whether the defendants could prove the execution of said Special Power of Attorney by deceased Tanbaji in the name of Vishwnath Telange. The appellate Court has also recorded finding against the defendants. Thus, there are concurrent findings on fact recorded by the Courts below that the defendants have failed to prove that the deceased Tanba has executed alleged Power of Attorney in favour of Vishwanath Telange on the basis of which Vishwnath Telange has executed sale deed of the suit land in favour of the defendants. 5. Mr. Kothale, learned counsel for the appellant has urged that the suit was simplicitor for possession of the property and no declaration in respect of title was claimed, in the absence of which, the Courts below could not have passed the decree for possession of the property. He further sa275.08.odt 3 submits that there is no evidence led on behalf of the plaintiff and burden is placed upon the defendants to establish whether the alleged power of attorney was executed by Tanbaji in favour of Vishwnath Telange. He further argued that there is no relief claimed in the suit for declaration that the sale deed executed by Vishwnath Telange as power of attorney of Tanbaji in favour of the defendants is null and void. 6. In view of above position, the appeal is admitted, on the following substantial question of law: “Whether the Courts below were right in decreeing the suit merely on the basis of finding that the defendants have failed to prove that the deceased Tanba had executed alleged power of attorney in favour of Vishwnath Telange?” Mr. Lule, learned counsel for the respondent nos. 3 to 6 waives notice. Civil Application No. 4890/2008 Heard learned counsel for the parties. Although notices were issued, none appears for respondent nos. 1 and 2. This Court, by order dated sa275.08.odt 4 21.07.2008 granted status quo as regards possession, subject to the plaintiff’s furnishing security to the satisfaction of the lower Court. Mr. Kothale, learned counsel submits that the said security has been furnished before the lower Court. In view of that, interim order of status quo granted on 21.07.2008 shall continue during the pendency of appeal. J UDGE kahale