1. This Second appeal is filed by the appellant (Original Defendant) against the Judgment and Order, dated 7.4.2007 passed by the Principal District Judge, Buldana in Regular Civil Appeal No.35 of 2005, which was dismissed. The said appeal arose from the Judgment and Order, dated 23.2.2005 passed by Civil Judge (Jr.Dn.), Mehkar, District Buldana (the trial Court) in Regular Civil Suit No.224 of 1996. The suit was decreed restraining the defendants from obstructing possession.

2. Brief facts are : The suit was instituted on 30.12.1996 in respect of the suit land Gat No.38, admeasuring 9 H. 99 R. situated at village Pen Takli, Taluka Mehkar, District Buldana. Written Statement was filed on 8.8.2003 at Exh.30. Regular Civil Suit No.224 of 1996 was instituted by the respondents–plaintiffs on 30.12.1996 for permanent injunction against the appellants-defendants seeking to restrain them from obstructing possession in respect of the suit land Gat No. 38, admeasuring 9 H, 99 R situated at village Pen Takli, Taluka Mehkar, District Buldana. The plaintiffs pleaded that they are owners along with their sisters and in possession of the land block No.38, admeasuring 9 H, 99 R at village Pen Takli, Taluka Mehkar, District Buldana and the defendants have no concern. The appellants claimed their possession on the basis of the Thoka Patrak i.e. Tenancy agreement and an agreement of sale executed by respondent no. 3 in favour of appellant nos. 1 and 3. It is case of the plaintiffs in the trial Court that the defendants had in December 1996, unauthorisedly took away 40 to 50 bags of Jowar seeds and fodder and complaint was made against the defendants at Sakhar Kherda Police station. (Defendant no.3 Tejrao Ingle had admitted this fact in his cross-examination).

Written statement was filed on 8.8.2003 by the defendants denying the plaintiffs’ contentions (at Exh.30). At the trial, the plaintiffs did not enter in the witness box personally to depose, but evidence of the Power of Attorney was tendered. The case of the plaintiffs that the Power of Attorney was executed in favour of Ramgeeta ( PW1 ) was not established by the evidence.

Ramgeeta (PW1) had no knowledge, hence her evidence ought to have been discarded on the ground that the case of the plaintiffs remained unproved. At the trial, the plaintiffs did not enter in the witness box personally but evidence of the power of attorney was tendered. The case of the plaintiffs is that the Power of Attorney was executed in favour of Ramgeeta ( PW1 ) was not established by the evidence. Said Ramgeeta had no personal knowledge, hence her evidence ought to have been discarded by the Courts below.

3. The prayer in the suit was for perpetual injunction to restrain the defendants from obstructing possession of the plaintiffs.

4. Trial Court findings were that the plaintiffs proved their ownership and possession over the suit property and obstruction by the defendants to their possession over the suit property and the plaintiffs were held entitled to the reliefs prayed. Trial Court noted that there was no any denial of the ownership of the plaintiffs. In fact, in Written Statement (Exh. 30), the defendants had admitted ownership of the plaintiffs and their sisters.

5. The first Appellate Court’s findings concurrent with the trial Court were that the plaintiffs are in possession of the suit property and the defendants are trying to obstruct their possession over the suit property. The first Appellate Court held that Ramgeeta (P.W.1) is wife of plaintiff no.2 as also Power of Attorney holder.

6. The Second Appeal was admitted on 16.7.2007 on the following substantial question of law :

i) Whether the Court ought to have dismissed the suit of the plaintiffs in respect of two hectares of land which was allegedly agreed to be purchased by the defendants ?

ii) Whether the suit could have been decreed on oral evidence of the Power of Attorney holder when none of the plaintiffs entered in the witness box ?

My answers f