NEUTRAL CITATION
C/AO/500/2011 CAV JUDGMENT DATED: 10/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 500 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
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1 Whether Reporters of Local Papers may be allowed No to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== JYOTSNABEN WD/O RATIBHAI MAGANBHAI & 1 other(s) Versus VIJAYBHAI RAMESHBHAI PATEL & 1 other(s) ========================================================== Appearance:
MR VIKRAM J THAKOR(2221) for the Appellant(s) No. 1,2 MR ASHISH M DAGLI(2203) for the Respondent(s) No. 1,2 MR SP MAJMUDAR(3456) for the Respondent(s) No. 3 ========================================================== CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA Date : 10/11/2023 CAV JUDGMENT
1. This appeal from order is directed against the order dated 30.05.2011 passed below Exh.5 in Special Civil Suit No.83 of 2010, whereby the trial Court was pleased to reject the prayer Page 1 of 8 Downloaded on : Fri Nov 10 21:08:28 IST 2023 NEUTRAL CITATION C/AO/500/2011 CAV JUDGMENT DATED: 10/11/2023 undefined of interim injunction sought by the appellants-plaintiffs.
2. The brief facts giving rise to file present appeal are that, the appellants are original plaintiffs, whereas, respondents are original defendants. The appellants-sisters filed a Special Civil Suit No.83 of 2010, claiming their ½ share in the disputed agricultural land bearing Survey No.1188/1. The appellants and other co-owners executed irrevocable power of attorney in favour of one Ritesh Hada-defendant no.2 in relation to the suit land and the power to sell the property was entrusted to Mr. Hada. The notarized agreement to sell dated 09.09.2005 was executed by the appellants and others in relation to the suit land in favour of Ritesh Hada and on the same day, by handing over the possession of the suit land to him, the possession receipt was signed and executed by the appellants and others. Mr. Ritesh Hada pursuant to irrevocable power and based on his possession, sold the suit land to defendant no.1-Vijay Patel by executing registered sale deed dated 29.03.2007. It is the case of the appellants that, the power dated 13.09.2005 was not given by the appellants and under the guise of conversion of the land on the blank papers their signatures were obtained. It is further alleged that, on 30.12.2006, by public notice, the power was cancelled and despite of these facts, on 29.03.2007, the land in question was sold to the defendant no.1.
In the aforesaid background facts, the suit for injunction, declaration and cancellation of alleged registered sale deed dated 29.03.2007 filed by the appellants, inter-alia, alleging Page 2 of 8 Downloaded on : Fri Nov 10 21:08:28 IST 2023 NEUTRAL CITATION C/AO/500/2011 CAV JUDGMENT DATED: 10/11/2023 undefined that, for conversion of land, the power was given and to obtain the necessary permission on the blank papers, their signatures were obtained by Mr. Hada and by misusing his authority, the land was sold to the defendant no.1 and has created false and forged possession receipts without knowledge and consent of the appellants herein and thus, the alleged sale transaction is not binding to the appellants and same is require to be set aside. The permanent injunction has been sought to restrain the respondents-defendants in transferring, alienating the land in question in any manner and shall not disturb their possession of the suit land. Along with the suit, the interim injunction prayed below Exh.5, inter-alia, praying that, the defendants be restrained from transferring or alienating the suit land and shall not disturb their possession till final disposal of the suit.
By filing written statement, the suit as well as injunction application contested by the defendants raising the issue that the appellants and others after receiving full amount of consideration, sold the suit land, for which they had executed irrevocable power of attorney in favour of defendant no.2 and thereafter, executed a notarized agreement to sell and also handed over the possession of the suit land. The said transaction was completed in the year of 2005. The land in question sold by way of registered sale deed in the year of 2007. In the revenue record, the entry to this effect was mutated and since 2007, the defendant no.1 is in possession and subsequently, the land has been sold to the defendant no.3. The suit is filed after a period of five years for which no Page 3 of 8 Downloaded on : Fri Nov 10 21:08:28 IST 2023 NEUTRAL CITATION C/AO/500/2011 CAV JUDGMENT DATED: 10/11/2023 undefined reasonable explanation come forward by the plaintiffs. The mutation entry has not been challenged. The irrevocable power of attorney cannot be cancelled by public notice where the agent has himself an interest in the property.
Before the trial Court, the injunction application Exh.5 was heard at length and accordingly, after considering the merits of the case, the trial Court was of the view that, the appellants- plaintiffs failed to establish their prima-facie case and balance of convenience and irreparable loss are also not in their favour. The learned trial Court considering the delay in seeking equity relief of injunction, did not consider to grant temporary injunction and dismissed the application.
3. Being aggrieved with the said order dated 30.05.2011, the appellants-plaintiffs have preferred the present Appeal from Order questioning the legality and correctness of the order.
4. This Court has heard learned counsel Mr. Vikram Thakor, Mr. Ashish Dagli and Mr. S.P. Majmudar for the respective parties.
5. Mr. Vikram Thakor, learned counsel appearing for the appellants, assailing the order impugned, has submitted that, the power of attorney dated 09.09.2005 alleged to have been executed, are bogus and false as the appellants were never present before the Notary for its execution and signatures thereof were obtained on the blank papers making false Page 4 of 8 Downloaded on : Fri Nov 10 21:08:28 IST 2023 NEUTRAL CITATION C/AO/500/2011 CAV JUDGMENT DATED: 10/11/2023 undefined representation that, the signatures are required for conversion of land. That, there are discrepancies in the notarized agreement to sell dated 13.09.2005 and the another agreement to sell allegedly executed on the same day in relation to the amount of consideration and the alleged possession receipts, the narration and description of the land is found incomplete, which prima-facie, shows that the defendant no.2-Mr. Hada, by misusing the signed blank papers created false and bogus power of attorney as well as two agreement to sells and possession receipts so as to show his ownership and interest in the property. That, by public notice dated 30.12.2006, the power dated 13.09.2005 was cancelled, despite of these facts, the land was sold on 09.09.2005 and therefore, the defendant no.2 having no any authority to sale the property.
6. In the aforesaid contentions, learned counsel Mr. Thakor submitted that, the learned trial Court failed to appreciate the aspects of cheating and forgery which has direct bearing on the right of the appellants and therefore, prima-facie, the issue raised is triable issue and it is a strong case for trial and therefore, while dismissing the application, the trial Court has not exercised its discretion judicially and on sound legal principles.
7. Lastly Mr. Thakor submitted that, since February-2013, the parties have maintained status-quo with regard to the suit land as directed by this Court while issuing the notice to the parties and therefore, the interim order may be confirmed with Page 5 of 8 Downloaded on : Fri Nov 10 21:08:28 IST 2023 NEUTRAL CITATION C/AO/500/2011 CAV JUDGMENT DATED: 10/11/2023 undefined a direction to the trial Court to dispose of the suit expeditiously.
8. Mr. S.P. Majmudar, learned counsel appearing for the defendant no.3 who is the subsequent purchaser of the suit land has submitted that, the Court has properly exercised its discretion after considering the conduct of the appellants and therefore, the findings recorded on the issue of delay as well as on other aspects cannot be said to be perverse and dehors to the settled principle of law regulating grant or refusal of interlocutory injunction. He further submitted that, the defendant no.3 is the bonafide purchase of the suit land and since the date of sale deed, he is in possession of the suit land and therefore, no case is made out to interfere with the order impugned.
9. Having heard the learned counsel for the respective parties and on perusal of the order impugned, the issue falls for consideration of this Court is whether the impugned order suffers from any error of law which calls for interference in the exercise of appellate jurisdiction?
10. Before adverting to the issue, some of the relevant facts which are undisputed needs to be referred. That, on 13.09.2005, the irrevocable power of attorney was given to defendant no.2 and on the same day, two agreement to sell in relation to the suit land were executed by the appellants and others in favour of defendant no.2 Mr. Hada and on the same day, possession was handed over by issuing possession Page 6 of 8 Downloaded on : Fri Nov 10 21:08:28 IST 2023 NEUTRAL CITATION C/AO/500/2011 CAV JUDGMENT DATED: 10/11/2023 undefined receipts by the appellants. By public notice dated 30.12.2006, the power was cancelled by the appellants. On 29.03.2007, based on the power, the sale deed came to be executed in favour of defendant no.1. The defendant no.1 by registered sale deed dated 25.03.2011 again sold and transferred the said land to defendant no.3 Mr. B.D. Shah. In the revenue records, the mutation entry effected and certified in favour of the defendants against which, no action has been taken by the plaintiffs.
11. In these background facts and upon perusal of findings recorded by the trial Court, this Court is of considered view that the trial Court has rightly dismissed the application on the ground that delay defeats the equity as there is inordinate delay in claiming the equitable remedy. The plaintiffs have not initiated any criminal proceedings about the alleged forgery in making power of attorney and other documents. The discrepancies as pointed out by Mr. Thakor, learned counsel for the appellants do not affect the substantial rights of the subsequent purchasers. Mr. Thakor, learned counsel has emphasized on the issue that despite the notice of cancellation of power, the defendant no.2, executed a sale deed by ignoring the fact that, he having no authorization to enter into transaction. The power of attorney was irrevocable. In that case, Section 202 of the Contract Act needs to be refer. The Section says that, where the agent has himself an interest in the property which forms the subject matter of agency, the agency cannot, in absence of express contract be terminated to the prejudice of such interest. The defendant no.2 was the Page 7 of 8 Downloaded on : Fri Nov 10 21:08:28 IST 2023 NEUTRAL CITATION C/AO/500/2011 CAV JUDGMENT DATED: 10/11/2023 undefined purchaser of the property. He paid the consideration and pursuant to the same, the appellants and others executed irrevocable power of attorney in his favour and also executed notarized agreement to sell with possession receipts. The appellants failed to show that, there is express contract authorizing them to terminate the power. The contention about maintaining status-quo as raised cannot be accepted as the respondent no.3 herein is bonafide purchaser of the land and therefore, why there is hanging sword of the litigation on him in relation to the land.
12. For the foregoing reasons and considering the scope of interference by the Appellate Court, this Court does not find any perversity in the impugned order and no grounds exist to interfere with the order impugned. Accordingly, the present appeal fails and is hereby dismissed. The interim relief stands vacated.
Sd/-
(ILESH J. VORA,J) TAUSIF SAIYED Page 8 of 8 Downloaded on : Fri Nov 10 21:08:28 IST 2023