Bombay High Court
Surekha Sakharam Washiwale vs Nanobha Dhondiba Bharekar & Ors on 12 December, 2013
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
APPEAL FROM ORDER NO. 1249 OF 2012
WITH
CIVIL APPLICATION NO. 1704 OF 2012
IN
APPEAL FROM ORDER NO. 1249 OF 2012
Surekha Sakharam Washiwale ....Appellant.
Vs.
Nanobha Dhondiba Bharekar & Ors. ....Respondents.
Mr. Rajesh A. Tekale for the Appellant.
Mr. Pralhad D. Paranjape for Respondent No.1.
CORAM : ANOOP V. MOHTA, J.
DATE : 12 DECEMBER 2013.
ORAL JUDGMENT:-
Heard finally, by consent of the parties.
The Appellant-original Plaintiff has challenged order dated
20 July 2012, whereby her Application Exhibit-5 is rejected by the
learned Joint Civil Judge, Senior Division, Pune.
2 On 9 April 2012, the Appellant has filed a Suit for
cancellation of sale deed dated 11 October 2011, which is within
limitation, on the following foundation.
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3 In the year 2001, the Appellant purchased land
admeasuring 1,925 sq. fts out of Survey No. 112/7B + 8A+9A/1, area
admeasuring 01 Hector 28.05 Are situated at village Kothrud, Taluka
Haveli, District Pune from Babanrao Dhondiba Sutar and others by
way of registered sale-deed dated 27 December 2001. Her name is
also came to be mutated in 7/12 extract under Mutation Entry No.
17138. She has constructed temporary sheds. Since then she is in
possession of the Suit property.
4 The Appellant, as alleged, was in need of money and
therefore, obtained loan from Respondent No.5 for Rs.75,000/- and by
way of security executed a Visar Pavati in respect of Suit property.
Respondent No.5 assured her that there are two intending buyers and
she would fetch very good price for the property and convinced her to
execute a Power of Attorney in favour of Defendant No. 2. The
Appellant used to inquire about the sale. Respondent No.5 always
gave false assurances and told to wait for some more days so that she
would fetch good price. Later on, Respondent No.5 started
threatening her and also insisted to sell the property to himself.
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Therefore, the Appellant cancelled the Power of Attorney by
publishing notice dated 8 December 2007, in daily newspaper
"Prabhat". The Appellant received no consideration and never
transferred the title or possession of the Suit property to anybody, on
the basis of the Power of Attorney.
5 On 11 October, 2011, the Appellant got knowledge that
Respondent Nos. 2 to 5 were trying to mis-utilize the documents and
have executed sale-deed dated 11 October 2011, in favour of
Respondent No.1. The Respondents were trying to make mutation
entries and were likely to take forcible possession of the Suit property.
Therefore, filed the Suit for declaration and temporary injunction for
restraining the Respondents from taking over forcible possession of
the Suit property.
6 The Power of Attorney though registered in the year 2007
itself, the Appellant cancelled the same by public notice on 8
December 2007. The sale-deed in question, is based upon the Power
of Attorney issued who, as alleged, inspite of cancellation, misused the
same and sold the property in question to Respondent-Defendant
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No.1. The basic document, based upon which the Plaintiff had
received Rs.75,000/-, was admittedly not a registered document.
7 The sale-deed in question admittedly not signed by the
Appellant-Plaintiff. The considerations so mentioned in the registered
sale-deed are not received by the Appellant, but by Respondent-
Defendant Nos. 2, 3 and 4 and on the respective dates. Even the case
of Respondent No.1 is that the amount given only to the other
Defendants'/Respondents'. There is nothing on record to show that
the said amount though paid by cheques were further deposited in the
account of Appellant-Plaintiff, which was one of the condition even of
the alleged Power of Attorney.
8 The Apex Court recently in Suraj Lamp & Industries Pvt.
Ltd. Vs. State of Haryana & Anr. 1 has doubted such transaction based
upon the Power of Attorney. The validity and the effect of such
transactions are also discussed and tested, and in a way declared that
the transfer of immovable property based upon such Power of
Attorney and/or through such Power of Attorney needs to be tested
1 2009(7) SCC 363
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and the facts of sale just cannot be accepted, when the doubts and
materials are placed on record to show about the misuse and misdeed,
based upon the same Power of Attorney.
9 The submission, therefore, that Defendant No.1 being
bona fide purchaser and has made payment to the registered Power of
Attorney Holder and as recorded in the registered sale-deed, just
cannot be overlooked unless the Plaintiff-Appellant makes out the case
by leading evidence to the contrary, this in my view, in the present
facts and circumstances, is not acceptable. Defendant No.1 though
purchased the property, as the Power of Attorney Holder signed
and/or accepted the consideration on behalf of the Appellant-Plaintiff
that itself in no way sufficient ground, at this stage, to overlook the
cancellation of Power of Attorney by the public notice. The Power of
Attorney Holder-Defendant-Respondent No.1, just cannot denied and
or show ignorance of such public notice of cancellation of their
authority. Their ignorance is also in the background, apart from
receipt of consideration from time to time, without depositing the
amount in the account of the Appellant-Plaintiff, itself prims-facie
shows that the transaction so entered into is not with permission
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and/or consent of the Appellant-Plaintiff, who is admittedly the owner
of the property in view of the earlier sale-deed, as recorded above, of
the year 2001.
10 The party, one who authorized a person and/or the party
who act on his behalf, though the document is registered, once
withdrawn the same authority by whichever way and/or method,
such authorized person and/or the Power of Attorney Holder, just
cannot still insist that the registered Power of Attorney/documents
unless set aside by filing separate Suit, no one can prevent, including
even the person like the Appellant-Plaintiff, to enter and/or deal with
the property, is unacceptable. Once the Power of Attorney is cancelled
by whatever the procedure available, that just cannot be overlooked
by the Court at this stage of the proceedings. The person who had
given authorization, is the best person to cancell and/or to withdraw
such authorization. Once it is withdrawn/cancelled, such authorized
person, in my view, is not empowered and/or can proceed to use
and/or misuse the authority/the Power of Attorney.
11 In the present case, in view of the above admitted position
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on record, therefore, it is sufficient to consider the case of the
Appellant who is in possession of the suit property since long, being
the owner and the sale-deed in question, even if executed and
registered. This cannot be the reason not to grant protective relief, as
prayed by the Appellant-Plaintiff in this matter.
12 The registered sale-deed in question, therefore, based
upon such withdrawn Power of Attorney and is no way dis-entitled to
grant the reliefs, so prayed. The case is made out for the protection to
avoid further complications and the third party rights in the property.
13 For the above reasons, I am inclined to set aside the
impugned order.
14 Resultantly, the following order:-
ORDER
a) Impugned order dated 20 July 2012, is quashed and
set aside.
b) The Appeal from Order is accordingly allowed.
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c) The Respondents are injuncted from disturbing the
possession of the Appellant-Plaintiff.
d) The Appellant-Plaintiff is also required to maintain
the status-quo with regard to the property in
question, pending the disposal of the Suit.
e)
The Appeal from Order, so also the Civil Application
are disposed of, accordingly.
f) There shall be no order as to costs.
15 The learned counsel appearing for Respondent No.1 seeks
stay to the effect and operation of this order as till this date, there was
no interim protection in favour of the Appellant-Plaintiff. Considering
the reasons so recorded above, the effect and operation of this order is
stayed only for four weeks from today.
(ANOOP V. MOHTA, J.)
