IMPORTANT POINT
The central legal point established in the judgment is the competency of a spouse as a witness in civil proceedings, as outlined in Section 120 of the Indian Evidence Act.

JUDGMENT :

Present second appeal is preferred by defendant Nos. 1 to 4 in O. S.No. 606/1989 (old No.122/1982). Original suit was dismissed by the Trial Court. Against which the plaintiff preferred first appeal before learned Civil Judge (Sr. Dn.), Chikodi in R.A.No.113/1996 which was allowed and suit of the plaintiff came to be decreed.

2. Being aggrieved by the same, defendants have preferred this appeal and this Court admitted the matter on the following substantial question of law:

"Whether the judgment of the first Appellate Court reversing the judgment and decree passed by the Trial Court relying upon the evidence of the power of attorney holder of the first plaintiff - PW1 is contrary to the decision of the Hon'ble Supreme Court in JANKI VASHDEO BHOJWANI AND ANOTHER VS. INDUSIND BANK LIMITED AND OTHERS (ILR 2005 KAR 729)."

3. A suit came to be filed by the plaintiffs seeking following relief:

"(a) That it be declared that the suit properties are the joint family ancestral properties of the plaintiffs and that they are in actual possession, wahiwat and cultivation of these lands and that the defendants have no manner of right to create any illegal documents.

(b) Consequential relief of injunction be granted against the defendants 2 to 4 and the men on their behalf from disturbing the actual possession and lawful wahivat of the plaintiffs in respect of the suit properties at any time in future.

(c) Any other relief that deem fit be granted.

(d) Costs of this suit be granted to the plaintiffs.

(e) Permission to amend and after the plaint as and when necessary be granted. Decree be passed accordingly."

4. The suit was dismissed by the Trial Court.

5. Plaintiffs preferred an appeal before learned Civil Judge Senior Division, Chikodi challenging the validity of the judgment passed by learned Trial Judge. Learned Judge in the first appellate Court, reconsidering the facts and law by exercising the power under Section 96 of the Cr.P.C., decreed the suit of the plaintiffs.

6. Learned Trial Judge has dismissed the suit of the plaintiffs on the ground that plaintiffs did not step into witness box and in his place his wife examined based on power of attorney executed by her husband. Power of attorney is marked at Ex. P.1. Learned Judge of the first appellate Court however reconsidered the issue regarding competency of PW-1 in deposing about the plaint averments and decreed the suit of the plaintiffs. Defendant who was successful before the Trial Court has suffered the decree at the hands of first appellate Court has preferred the present appeal.

7. Heard the arguments of Shri. Shrikant T. Patil, learned counsel for appellants and Shri. B. S. Kamate, learned counsel for respondent Nos.2( A & B), 3 to 6.

8. At the time of arguments contended by appellant has placed reliance on the judgment of the Hon'ble Supreme Court in Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. And others reported in ILR 2005 KAR 729. The relevant portion of the said judgment reads as under:

"12. In the context of the directions given by this Court, shifting the burden of proving on the appellants that they have a share in the property, it was obligatory on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal.

13. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "ac