Prashant Shivcharan Kathoke vs Nikhil S/O. Lalit Sharma
2023 Latest Caselaw 11080 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR.
                    WRIT PETITION NO. 3412 OF 2023
                              Prashant Shivcharan Kathoke
                                           -Vs.-
                                   Nikhil Lalit Sharma
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Office notes, Office Memoranda of
Coram, appearances, Court's orders      Court's or Judge's Orders.
or directions and Registrar's orders.
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                       Mrs.P.V.Ganediwala and Mr.Vinay Sharma, counsel for the petitioner.
                       Mr.S.S.Sitani, counsel for the respondent.


                                          CORAM : AVINASH G. GHAROTE, J.

DATE : 27TH OCTOBER, 2023

Heard the learned counsel for the petitioner and the respondents. The present petition is filed by the original defendant challenging the order below Exh.-5, passed by the learned Trial Court dated 15/04/2023 (Page-57), whereby the same has been granted and so also the judgment in appeal dated 17/05/2023 (page 45) dismissing the appeal.

2. The following position is not in dispute.

(a) That Plot No.145 was originally owned by the Burde Family, who by an agreement of sale dated 09/07/2021 (page-89) agreed to sell the same to the respondent (Nikhil Sharma) for valuable consideration. The said agreement indicated possession being delivered to the respondent.

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(b) In pursuance to the said agreement, a sale deed was executed and registered by the Members of the Burde Family on 22/09/2021 in favour of the respondent (page-

96), which mentions about possession already being delivered to the respondent on the date of the agreement of sale.

(c) On 24/09/2021, the respondent executed a power of attorney in respect of Plot No.135 in favour of the petitioner, which was registered on 24/09/2021 (page-

147).

(d) It is contended that on the basis of this power of attorney dated 24/09/2021, the petitioner registered a sale deed, which was executed by the respondent in his favour (page-160).

(e) The respondent on 09/11/2022, filed Special Civil Suit No.1222 of 2022, claiming a declaration that the sale deed dated 04/10/2022 was null and void and not binding upon the respondent.

(f) The learned Trial Court by the order dated 15/04/2023 (page-57) allowed the application below Exhibit-5, holding that the respondent was in possession of the plot No.135 and thereby restraining the petitioner/ defendant from disturbing his possession and from creating third party interest.

(g) The petitioner/defendant filed an appeal challenging the order below Exhibit-5, which came to be

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dismissed by the judgment dated 17/05/2023 (page-45).

3. It is contended by the learned counsel for the petitioner that both the order below Exhibit-5 and the judgment of the learned Appellate Court suffer from perversity, inasmuch as they do not take into consideration the fact that the power of attorney dated 24/09/2021 executed by the respondent in favour of the petitioner was not denied, which would indicate that the respondent himself had executed the sale deed in favour of the petitioner of Plot No.135, which was then merely registered by the petitioner in his own favour. It is also contended that the Courts below did not consider the position that it was the petitioner, who was in possession of Plot No.135 on the date of the filing of the suit, in pursuance to the sale deed dated 04/10/2022. It is also contended that the order below Exhibit-5 does not render any reasons for the finding regarding possession and therefore, is perverse. It is also contended that the electric meter in Plot No.135 is in the name of the petitioner, who has also appointed his security guard and has also filed complaints to the Police Authorities (page-305), and the notice under section 149 of Code of Criminal Procedure issued to the respondent, regarding the disturbance of possession of the petitioner by the respondent to the appropriate Authorities, all indicate possession of the petitoner. It is also contended that the entire consideration under the sale deed dated 22/09/2021, in favour of the respondent, was in fact, paid by the petitioner for which reliance is placed upon the entries in statement of account of the respondent (page-220).

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Though fraud has been pleaded in para-11 of the plaint regarding the execution of the sale deed dated 04/10/2022, it is lacking in material particulars. The plea of benami transaction, on the basis of which the sale deed dated 22/09/2021, is being doubted, is unsustainable in law, on account of the fact that there is no action taken under the provisions of the said Act as of date. The respondent was the employee of the petitioner on the monthly salary of Rs.5,000/- and therefore was not possessed of any means, and in fact is misuing the trust reposed in him. There is absence of prima facie case and the impugned order and judgment are based on irrelevant considerations. The leaned counsel relied upon Gorakh Mahadev Survase and others v. Narayan Balu Dhombe since deceased thr.his Lrs.and others, reported in 2012 (2) Mh.L.J. 215, which holds that for the purpose of grant of temporary injunction, parties must substantiate their case of possession by corroborative material and Thimmaiah v. Shabira and others, reported in (2008) 4 SCC 182 to contend that the Court has to record findings regarding possession.

4. Mr.Sitani, learned counsel for the respondent while supporting the order below Exhibit-5 and the impugned judgment, contends that the payment, under the sale deed dated 22/09/2021 has been made by the respondent. It is contended that the entries in the statement of account of the respondent (page-220), even if presumed to be correct, would not deter from the fact that the payment of consideration under the aforesaid sale deed has flown to the Members of the Burde Family from the respondent.

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Even if it is presumed that there are some entries prior to the transactions in favour of the members of the Burde Family, which indicate deposit of the amounts in the account of the respondent, that would not deter from the legality and validity of the sale deed dated 22/09/2021, which in fact transfers the title in favour of the respondent and recognizes his possession from the date of the agreement of the sale dated 09/07/2021 (page-89) by the Burde Family in favour of the respondent. He, therefore, contends that these documents would demonstrate that throughout the consideration has been paid by the respondent on his own, on account of which, title stands transferred in his name along with the possession as indicated above and the Courts below have rightly held that the respondent is the owner of the property in possession. It is also pointed out that the pleadings of the respondent in his written statement do not base the title upon the sale deed dated 04/10/2022, but claim that the sale deed dated 22/09/2021 in favour of the respondent was a benami transaction, the consideration for the same having been flown from the petitioner, which is a plea, which has to be established in evidence and the prima facie position as spelt out from the sale deed dated 22/09/2021 of the consideration having been paid by the respondent cannot be disbelieved at this stage. He also submits that if the plea is to be accepted that the sale deed dated 22/09/2021 was a benami transaction for which the consideration was paid by the petitioner, there is no reason why the sale deed dated 04/10/2022 should not indicate this position, rather on the contrary, would indicate that it is for consideration

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indicated to be paid to the respondent as mentioned therein. He, therefore, submits that the sale deed dated 04/10/2022 is clearly a document of doubtful character as rightly held by the learned Appellate Court and the concurrent findings in this regard do not call for any disturbance. The learned counsel for the respondent placed his reliance upon Skyline Education Institute (Pvt.) Ltd. v. S.L.Vaswani, reported in (2010) 2 SCC 142 regarding the powers of the Appellate Court of interference in an order of injunction. He also placed his reliance upon Life Style Green City Pvt.Ltd. and others v. Pyarelal (dead) thr. Lrs.and others; Writ Petition No.1881 of 2023 decided on 24/03/2023 (para-8) to contend that the electricity bills cannot be the sole criteria to hold possession of a party.

5. At this juncture, the learned counsel for the petitioner seeks a short accommodation for placing additional judgments on record, considering which list the matter on 30/10/2023.

JUDGE

Signed by: Mr. G.S. Khunte Designation: PS To Honourable Judge Date: 27/10/2023 18:46:50 KHUNTE