Bombay High Court
Shri.Gaura Bhima Hari Sahu vs Smt. Pushpa Motilal Gupta on 25 March, 2025
2025:BHC-AS:13647
fa 1248-13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1248 OF 2013
Gaura Bhima Hari Sahu ]
Aged about 62 years, Hindu, ]
Adult, Indian Inhabitant, Occupation : Business, ]
Residing at Room No.141, Hut No.85/A/MG/137, ]
Ganesh Murthy Nagar - II, ]
Captain Prakash Pethe Marg, ]
Cuff Parade, Mumbai 400 005. ] ... Appellant.
Versus
Pushpa Motilal Gupta, ]
Aged about 50 years, Hindu, ]
Adult, Indian Inhabitant, Occupation : Housewife, ]
Residing at Room No.141, Hut No.85/A/MG/137, ]
Ganesh Murthy Nagar - II, ]
Captain Prakash Pethe Marg, ]
Cuff Parade, Mumbai 400 005. ] ... Respondent.
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Mr. Ravindra Vishnu-Laxmi Sankpal, Moksh Abhay Jain, Ms.Chanchal
Singh i/by R.V. Sankpal & Associates for the Appellant.
Mr. Mangesh Patel for the Respondents.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : Feburary 11, 2025
Pronounced on : March 25, 2025
JUDGMENT:
1. First Appeal has been preferred by the original Defendant
against the impugned judgment dated 13th June, 2013 passed by
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fa 1248-13
the City Civil Court in SC Suit No.1995 of 2012 decreeing the suit.
2. The facts of the case are that:
(a) SC Suit No.1995 of 2012 was filed by the Plaintiff
claiming declaration of ownership of suit premises described
as Hut/Tenement Zhopda bearing Room No.141, Ganesh
Murthy Nagar, Captain Prakash Pethe Marlaba, Mumbai, for
possession of the suit premises and for declaration that the
Power of Attorney dated 26th April, 2004 and affidavit dated
26th April, 2004 be declared as null and void and not binding
upon the Plaintiff.
(b) The Plaintiff's case was that the Plaintiff is the holder
of photo-pass issued by the Collector in respect of said hut. In
the year 2004, the Defendant approached the Plaintiff
seeking accommodation and as the Plaintiff was in dire
financial necessity, she permitted the Defendant to use and
occupy a portion of suit premises for consideration of
Rs.40,000/- with an arrangement that upon repayment of the
said amount, the Defendant shall handover vacant
possession of the premises. As the photo-pass and ration
card were pledged by her with a neighbour Mrs. Savita
Panigrahi, upon the insistence of the Defendant, she
executed a promissory note/security arrangement, which the
Plaintiff later on discovered as Power of Attorney and
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Affidavit and that she never agreed to the contents scribed in
those agreements in English language with which she was not
conversant. As the Defendant declined to accept the
repayment of Rs.40,000/- and refused to vacate the peaceful
possession of the suit premises, the suit came to be filed.
(c) The defence of the Defendant was that the Defendant
is the owner of the suit premises. In the year 2004, the
Defendant was in need of premises and in March, 2004, the
Plaintiff relinquished her right, title and interest and handed
over the suit premises to the Defendant by executing the
affidavit-cum-declaration and irrevocable power of attorney
dated 26th April, 2004. Pursuant thereto, the Defendant had
applied to the rationing office for adding his name and
deleting the plaintiff's name in the ration card, transferred
the electric matter in his name and is regularly paying the
electricity charges. In the year 2007, the Plaintiff forcibly
entered into the premises and threatened to evict him in
respect of which the criminal complaint filed by him. He has
stated that he had paid consideration of more than
Rs.40,000/- for the suit premises but denied that any
promissory note was executed.
(d) The Plaintiff examined herself as PW-1 and one Smt.
Sagai David as PW-2 in support of her case. PW-1 deposed as
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to the contents of the plaint and produced electricity bill
dated10th January, 2001 (Exh-8), agreement dated 3 rd March,
2004 (Exh-9), letter dated 2nd March, 2007 addressed to the
Deputy Collector (Exh-10), letter given by Deputy Collector
(Exh.11) letter dated 15th March, 2007 addressed by the
Deputy Collector to the Cuffe Parade Police Station (Exh-12),
letter issued by the Deputy Collector to the Plaintiff (Exh-13),
new ration card bearing No.328104 dated 14th July, 2005
(Exh-14), certified copy of judgment dated 28 th June, 2010
passed by the City Civil Court in SC Suit No.4804 of 2007 (Exh-
15) and election card (Exh-16).
(e) In cross-examination, PW-1 has admitted that she had
got deleted her name from the old ration card and prepared
a new ration card. The case put to the Plaintiff was that she
has sold the suit premises to the Defendant. She has stated
that when she was sick, the Defendant helped her financially
and therefore she called him to reside in her house and that
she is ready to return the amount given by the Defendant but
he is not ready to accept the same. She has admitted that the
Defendant had paid the balance consideration to Mrs. Savita
Panigrahi. She has stated that the Collector had given her
photo-pass of the premises and Defendant told her that he
would take photocopy of the document and would return the
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fa 1248-13
original but did not return the same. When confronted with
the affidavit-cum-declaration and irrevocable power of
attorney, she denied her signature. She has stated that she is
residing in the photo-pass premises and has asked for a new
photo-pass. She has stated that after removal of her hut, she
has erected pakka construction.
(f) PW-2 deposed that she is a neighbour of the Plaintiff
who is the exclusive owner of the suit premises since 1980
which has been allotted by the Collector of Greater Bombay
and the Photo-pass was issued in the name of Plaintiff. She
has deposed that the Plaintiff had borrowed money from one
Savita Panigrahi by depositing her photo-pass and ration card
with the said person. She has deposed that the Plaintiff
agreed to allow the Defendant to use and occupy the suit
premises on financial help of Rs.40,000/- on the condition
that upon repayment, he would vacate the premises. She has
deposed that in the year 2007, the Plaintiff requested the
Defendant to vacate the premises upon receipt of the money,
however, he failed to do so.
(g) In cross-examination, PW-2 has admitted that at the
time of transaction of money and handing over possession
between the Plaintiff and the Defendant, she was not
present. She has further admitted that after handing over the
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possession to the Defendant, the Plaintiff applied for new
ration card and got it. She has failed to identify the signature
of the Plaintiff on Exhibit 18 and 19 i.e. the affidavit-cum-
declaration and the irrevocable power of attorney.
(h) The Defendant examined himself (DW-1), Bipra Bhima
Sahu (DW-2), Gadadhar Abhimanu Mahapatra (DW-3), Shop
Inspector-Navnath Piraji Dhanavate (DW-4), the Assistant
Rationing Officer-Nagesh Sambhajirao Mahadik (DW-5), Vajir
Sayyed Miya Sayyed (DW-6) and Ramkeval Ramsumer Jaiswal
(DW-7) in support of his case.
(i) DW-1 deposed as to the contents of his written
statement and also deposed that Room No 141 is divided into
two parts and in one part, the Plaintiff is residing and in
another part the Defendant and his family are residing. He
has deposed that Defendant has borne all expenses for
construction of suit property and addition, alteration etc. He
produced the original receipts (Exh 28) issued by the Plaintiff,
affidavit-cum-declaration dated 26th April, 2004, Irrevocable
Power of Attorney and Ration Card (Exh.18) and (Exh.19),
respectively, Ration Card SB No.0492849 (Exh.21), Electricity
Bill (Exh.30), Bombay Shops and Establishment Registration
Certificate (Exh.31), Health Card (Exh.32), Aadhar Card
(Exh.33), Election Identify Card (Exh.34) and Certificate dated
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18th January, 2007 issued by Seva Sangh Colaba to the
Defendant (Exh.35).
(j) In cross-examination, DW-1 has admitted that he does
not have photo-pass of the suit premises in his name and that
in the year 2004, the Plaintiff was residing in the suit
premises and is continuing to reside in the suit premises till
date. He has admitted that he had filed a suit against the
Plaintiff in the year 2007 in which he had not filed any
payment receipt issued by Plaintiff. He has stated that he has
paid a sum of Rs.3,00,000/- to the Plaintiff and that in the
previous suit, he has mentioned that he had paid Rs.70,000/-
to the Plaintiff. He has deposed that he is not aware whether
the Plaintiff is having electric meter. He has stated that Room
No.141 is consisting of one room which is divided by concrete
wall partition in two parts and one part is occupied by him
and another by the Plaintiff and that he has not having any
sale-deed of the suit premises. He has admitted that on 11 th
January, 2008, he had received notice from the Collector
calling upon him to present the photo pass but he has not
deposited the same as he is not having the photo-pass.
(k) DW-2 has deposed that he is a witness to the
transaction which took place in respect of suit premises
between the Plaintiff and the Defendant and though in the
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fa 1248-13
affidavit-cum-declaration Rs.70,000/- is mentioned but the
Defendant has paid Rs.2,50,000/-. He has further deposed
that the Plaintiff executed the sale agreement to which he is
a witness, however, the plaintiff has malafidely retained the
same. He has further deposed that he was witness to
payment made by the Defendant to the Plaintiff for which
receipt was issued by the Plaintiff under her signature.
(l) In cross-examination, DW-2 he has admitted that the
Defendant is his brother and admitted that the irrevocable
power of attorney and affidavit-cum-declaration does not
bear his name and signature. He has further admitted that
the Plaintiff has not issued any receipt of Rs 2,50,000/. He has
admitted that he does not have copy of the sale agreement.
(m) DW-3 has deposed that he was witness to the
transaction that was took place in the suit premises between
the Plaintiff and the defendant and while handing over third
payment of Rs.2,00,000/- out of Rs.2,50,000/- being total
consideration of suit premises on 26th April, 2004, he was
present. He has further deposed that the Plaintiff has
executed sale agreement, Power of Attorney and affidavit-
cum-declaration in front of Notary at Killa Court. He has
deposed that sale agreement executed by the Plaintiff is
retained by the Plaintiff malafidely and that Plaintiff has
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fa 1248-13
taken money from the Defendant and sold the suit premises
to the Defendant.
(n) In cross-examination, DW-3 has admitted that he never
visited Esplanade Court and upon perusal of the documents,
he cannot say which of the document is sale agreement. He
has admitted that none of the document bears his signature.
He has further admitted that he has not seen the execution
of receipt of Rs.2,00,000/- and that he had not accompanied
the Plaintiff and Defendant anywhere.
(o) DW-4 is the Shop Inspector, who had issued the
certificate under the Bombay Shops and Establishment Act,
1948 has deposed that based on the documents issued
Exhibit 18 and 19, the department can issue certificate under
the Bombay Shops and Establishments Act, 1948. In cross-
examination, he has admitted that while issuing the
certificate, it is not necessary that the employer must be
owner of the premises and they do not verify any documents
of title. He has further admitted that when the license was
issued, he was not working in the said department.
(p) DW-5 is the Assistant Rationing Officer and he has
deposed that the Ration Card was initially issued in the name
of five persons and thereafter with consent of cardholder,
the names of three persons were deleted and in 2004 the
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fa 1248-13
names of other three persons were included in the card. He
has further deposed that in 2005, the ration card holder
deleted four names and it was transferred in the name of
family or dependent. In the cross-examination, he has
admitted that he had not brought any document on the basis
of which the names were deleted from the ration card. He
has further admitted that he is not aware personally whether
at the time of deletion of the names from ration card the
consent of cardholder is taken.
(q) DW-6 has deposed as to the genuineness of the
certificate issued by Seva Sangh Colaba (Exh.48). He has
admitted that the Plaintiff is the owner of Room No.141 and
the certificate is issued after verifying as to who is the owner
of the hut. He has further admitted that the plaintiff has
been residing in the suit premises.
(r) DW-7 has deposed that the Defendant paid
Rs.2,00,000/- to the Plaintiff for the suit premises as final
payment. In the cross-examination, he has deposed that he
was present when the Plaintiff had accepted the money and
at that time, besides the Plaintiff and Defendant and himself
Bipra Sahu, Gadadhar Mahapatra and Sudhir were present. He
has admitted that in his presence, neither any agreement nor
any receipt of payment was executed. He has further
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admitted that he has seen the house of the Plaintiff and
there is no change in the house since 2004. He has deposed
that the amount of Rs.2,00,000/- was given by the Defendant
to the Plaintiff in denomination of Rs.1000/-, Rs.500/- and
Rs.100/-. He has admitted that while drafting his affidavit, he
has not stated that Rs.2,00,000/- was paid towards final
payment.
3. The Trial Court framed and answered the following issues.
ISSUES FINDINGS
1. Who is the owner of the suit The plaintiff
property ? excluding the land
thereof.
2. Whether the Power of Attorney Yes.
and affidavit dated 26/4/2004
executed by the plaintiff were
never intended to be acted upon?
3. Whether the defendant is illegally Yes.
trying to dispose of or alienate the
suit property ?
4. Is plaintiff entitled to declaration ? Yes.
5. Is plaintiff entitled to possession Yes.
of the suit property ?
6. What order ? Suit is decreed.
4. Broadly summarizing the findings of the Trial Court are as
under:
(a) The suit premises was allotted to the Plaintiff by the
Collector and the photo-pass is in her name.
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(b) The documents on the basis of which the Defendant
claimed title have been denied by the Plaintiff and he
has not examined the scribe or the Advocate in whose
presence the documents were alleged to have been
executed.
(c) In SC Suit No.4084 of 2007, the Defendant's case was
that he had paid Rs.70,000/-, however in receipt Exh.28
he has described that he has paid Rs.30,000/- and there
is balance of Rs.2,20,000/-.
(d) In the cross-examination, DW-1 says that he has paid
Rs.3,00,000/-. DW-2 and DW-3 has stated that the
Defendant has paid Rs.2,50,000/-. None of the
documents were signed by these witnesses. There is
discrepancy in respect of the consideration as per the
evidence of witnesses.
(e) DW-2 and DW-3 stated that the Plaintiff has executed
the sale agreement of the suit premises in their
presence which is not the case of the Defendant.
(f) The affidavit-cum-declaration and irrevocable power of
attorney cannot create any valid title in favour of the
Defendant.
(g) The pleadings of the Defendant is that he had purchased
the premises in 2004 and after 2007, the Plaintiff
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forcibly entered into the suit premises. The Defendant
and DW-6 admitted that in the year 2004 and till date,
the Plaintiff is residing in the suit premises.
(h) The suit is within limitation. The Defendant could not
establish his right, title and interest in the suit premises
and is liable to deliver vacant possession.
5. Mr. Sankpal, learned counsel appearing for the Appellant has
taken this Court through the proceedings and would point out that
in the cross-examination, the Plaintiff has accepted that he had
helped her financially. He would further point out that the
admissions of Plaintiff that the Defendant is residing in the suit
premises since year 2004 and is holder of ration card and also has
electricity meter in his name. He submits that documents were
executed by the Plaintiff relinquishing her right, title and interest in
the suit premises, which is substantiated by the admission that
after handing over possession to the Defendant, the Plaintiff
applied for new ration card. He would take this Court through the
documents produced by the Defendant such as Ration Card,
Electricity Bill, Shops and Establishments License, Election Card,
Aaadhar Card etc. and would submit that all these documents
would demonstrate possession of the Defendant since the year
2004. He submits that the premises in question was divided into
two parts in the year 2004 and the Defendant was put in possession
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of one portion of the premises, which is evident from the
documents on record and therefore his possession is entitled to be
protected at least on the ground of adverse possession.
6. Per contra, Mr. Patel, learned counsel for the Respondents
would submit that there is no question of adverse possession as the
period of 12 years has not been satisfied. He submits that in the
written statement the case of the Defendant was of purchase of
the suit premises. He submits that it is the Plaintiff's specific case
that the documents are not executed by her and are not binding on
her. He submits that the premises can be transferred only by way of
registered document under Section 54 of the Transfer of Property
Act, 1882. He submits that the Defendant has taken a contrary
stand as regards the transaction and consideration. He submits that
in the written statement, the Defendant has stated that the
Plaintiff is not in possession and the possession is with him and that
the Plaintiff tried to enter into possession in the year 2007 whereas
the evidence of the witnesses shows the contrary. He submits that
written statement does not speak of the consideration paid for the
purchase. He submits that the witnesses examined by the
Defendant deposes about an agreement of sale being executed
between the parties when it is not the case of the Defendant. He
submits that the evidence of PW-1 and PW-2 corroborate each
other as regards the acceptance of financial help of Rs.40,000/-. He
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submits that the Defendant has failed to prove his right to
possession of the suit premises.
7. The following points arise for consideration:
(I) Whether the Plaintiff is the occupier of suit
premises i.e. Room No.141 Ganesh Murthy Nagar-II,
Captain Prakash Pethe Marg, Cuffe Parade, Culaba,
Mumbai and is entitled to sole and exclusive
possession thereof ?
(II) Whether the execution of the affidavit-cum-
declaration and the irrevocable power of attorney
alleged to have been executed by the Plaintiff
confers any right, title and interest in the suit
premises upon the Defendant ?
(III) Whether the affidavit-cum-declaration and the
irrevocable power of attorney dated 26th April,
2004 are null and void and not binding upon the
Plaintiff ?
(IV) Whether the Defendant has any right to remain in
possession of the suit premises ?
(V) Whether the suit is barred by limitation?
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AS TO POINT NOS.(I) AND (II):
8. Both the points relate to the right to remain in occupation of
the suit premises and are therefore interlinked. The admitted
position is that the suit premises is described in the plaint as Room
No.141, Ganesh Murthy Nagar, Captain Prakash Pethe Marg, Culaba
is a Hut/Zhopda which is erected on the Collector's land. In respect
of slums, the occupier of the hut is recognised by issuance of
photopass in name of the occupier. The Defendant has admitted
that the Plaintiff is the holder of photopass and that he does not
have photo-pass in his name. Though the case of the Defendant is
that he had purchased the premises from the Plaintiff in the year
2004, there was no transfer of photo-pass in name of the
Defendant after acquiring permission of the concerned authority.
This issue was brought to the notice of the Cuffe Parade police
station by the Deputy Collector by communication dated 15th
March, 2007-Exh 12, specifically stating that there cannot be
transfer of photopass without permission. The communication
further states that the Defendant was directed to deposit the
photopass, however he has not deposited the same and action be
taken against Defendant and photo pass be confiscated.
9. The suit premises is situated on Collectors land for which
photo-pass is the mode of recognition of occupation. As the photo-
pass admittedly is not transferred in name of the Defendant, the
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Plaintiff continues to be statutorily recognised as occupier of the
suit premises.
10. The Defendant claims a right to the suit premises based on
affidavit-cum-declaration dated 26th April, 2004 and an irrevocable
power of attorney dated 26th April, 2004 purported to have been
executed by the Plaintiff transferring/releasing her right in the suit
premises i.e. Room No.141. Perusal of the affidavit-cum-declaration
indicates that the document records that the Plaintiff is the holder
of the photo-pass and that she has relinquished the possession in
favour of the Defendant. Pertinently, the document records that
the relinquishment is not for any mandatory consideration and it is
a mere possessory right. The document further records that as she
has incurred expenses in constructing the premises, obtaining
electricity connection etc. the expenses are quantified at
Rs.70,000/- which is paid by the Defendant in respect of which she
has executed a receipt. The document further records that she is
residing in the said hut with a minor son aged 14 years and his
interest shall be protected till his majority and no prejudice will be
caused due to the said relinquishment from the reimbursement of
the construction expenses.
11. The Defendant basis his claim to ownership of suit premises
upon payment of consideration of Rs.3,00,000/- based on the
Affidavit cum declaration. The contents of the said affidavit-cum-
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declaration makes it clear that the relinquishment was not for any
monetary consideration and there is no mention of any amount
except sum of Rs.70,000/- stated to have been paid towards
construction expenses. Though the Plaintiff has denied her
signature on the said document, in the evidence, she has pleaded
that she has never consciously executed the document and she is
not aware of the contents scribed in this documents as they were in
english. The case of the Plaintiff therefore is that under the guise
of executing a promissory note, the documents were got executed
by the Defendant. As the documents were not proved to have been
consciously executed, therefore is no agreement as to the contents
of the document.
12. The case of the Plaintiff was that she had taken a sum of
Rs.40,000/- which was agreed to be repaid pursuant to which the
Defendant was to hand over the vacant and peaceful possession of
the suit premises. The Defendant has filed two receipts of
Rs.30,000/- and Rs.20,000/- at exhibit 28, however, there is no cross
examination of the Plaintiff on those two receipts. The receipts
when examined states that money has been received by the
Plaintiff towards the construction charges in respect of Zopda
No.141 as the possession of the said Zopda is agreed to be given on
tender of balance sum of Rs.2,20,000/-. The second receipt speaks
of receipt of Rs.20,000/- being part payment towards construction
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charges in respect of Zopda No.141 to be paid by him to the
Plaintiff. The receipts have been witnessed by two persons.
However, the Defendant has failed to examine these witnesses. The
affidavit cum declaration when read with the contents of the two
receipt does not establish that the exchange of money was towards
the relinquishment of the Plaintiff's right in the suit premises.
13. Now coming to the witnesses examined by the Defendants
the Defendant himself has not deposed about execution of any sale
agreement with the Plaintiff. In cross-examination, he has said that
he has paid a sum of Rs.3,00,000/- to the Plaintiff, which he has
failed to prove. In the earlier suit, he has deposed that he has paid
Rs.70,000/- to the Plaintiff and in the present suit he has produced
the receipt of Rs.50,000/- and that too towards some construction
charges.
14. DW-2 has deposed that the Defendant has paid Rs.2,50,000/-
to the Plaintiff and had executed sale agreement. DW-3 has
deposed that the Plaintiff had executed sale agreement and while
handing over the third payment of Rs.2,00,000/- out of
Rs.2,50,000/- he was present. DW-7 has deposed that the
Defendant paid Rs.2,00,000/- to the Plaintiff for the suit premises.
The evidence of the witnesses discloses the discrepancy of the
entire transaction inasmuch as the Defendant claims to have paid
a sum of Rs.3,00,000/-. DW-2 deposes about the Defendant having
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paid Rs.2,50,000/-, DW-3 and DW-7 depose about Rs.2,00,000/-
having been paid. DW-3 speaks about a total consideration of
Rs.2,50,000/- DW-7 speaks about Rs.2,00,000/- as final payment.
Although, the Defendant has not deposed that there was any sale
agreement which was executed, the witnesses have deposed about
execution of sale agreement. Pertinently though DW-2 and DW-3
depose to have been present at the time of the transaction, in cross
examination they have admitted that they are not witnesses to the
Affidavit of Declaration. Upon appreciation of the testimony of the
witnesses, the same does not inspire confidence and does not
corroborate the case of purchase of the suit premises by the
Defendant.
15. The Plaintiff has deposed that the arrangement between her
and the Defendant was that she will permit the Defendant to
occupy portion of premises for temporary financial assistance of
Rs.40,000/- and upon repayment, the Defendant would vacate the
premises. The evidence of Plaintiff is not shaken in the cross
examination. The non transfer of photo-pass in name of the
Defendant indicates that the arrangement was temporary
arrangement till repayment of money. On the other hand the
defence of Defendant is that he has purchased the suit premises by
paying Rs.3,00,000/-. It was his case that he was in exclusive
possession and in the year 2007 the Plaintiff attempted to interfere
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in his possession. In cross examination he has admitted that the
Plaintiff is residing in the suit premises and till today is residing in
the suit premises. As discussed above the testimony of the
Defendant has failed to prove the transaction of sale of the suit
premises. The Affidavit of Declaration and the receipts also does
not support the case of sale of suit premises.
16. Trial Court has noted the contrary stand taken by DW-2 and
DW-3 as regards the consideration paid as also about the execution
of the sale agreement. The Trial Court has rightly dismissed the
plea of the Defendant's ownership of the suit premises by holding
that premises being a government land could not be sold and
therefore, there can be no claim of ownership based on the
impugned documents. The Trial Court disbelieved the testimony of
the Defendant, as he suppressed about the Plaintiff being in
possession of the suit premises from 2004 till date and had falsely
claimed that after February, 2007, the Plaintiff forcibly entered into
the premises.
17. The Plaintiff has proved that she is the recognised occupier of
the suit premises and no right, title and interest is conferred upon
the Defendant by virtue of the affidavit-cum-declaration and
irrevocable power of attorney. The Defendant has failed to
establish any right to remain in possession of the suit premises.
18. Point No.(I) and (II) are answered accordingly in favour of
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Plaintiff.
AS TO POINT NO.(III) :
19. The Plaintiff has specifically deposed that the affidavit-cum-
declaration as well as irrevocable power of attorney were got
executed from her without her being aware of the contents of the
said documents. She has deposed that under the guise of executing
promissory note/security arrangement, the documents were got
executed by Defendant in his favour. In the cross-examination, the
said deposition has not been shaken and she has stated that the
documents does not bear her signature. The affidavit-cum-
declaration as well as irrevocable power of attorney has not been
witnessed by any witnesses and has only being signed by the
Plaintiff and not even by the Defendant. The documents are shown
to have been notarized, however, the notary has not been
examined nor the extract of the Notary's register is produced to
show that the document was duly executed by the Plaintiff. Once
the Plaintiff has discharged the burden of proving that she was not
conscious of the contents of the document, it was for the
Defendant to establish that the affidavit-cum-declaration was duly
executed by the Plaintiff being aware of the contents of the said
document.
20. The Defendant has failed to lead any evidence to prove that
the Affidavit cum declaration and irrevocable power of attorney
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was executed by Plaintiff being conscious of its contents. The
documents are scribed in English and admittedly the Plaintiff is not
conversant with English language. There is not even deposition of
Defendant that the contents of the documents were explained to
the Plaintiff. There was thus mis-representation about the nature
of documents.
21. As regards the execution of the documents, the trial Court
has held that the Plaintiff has denied the execution of the
document and her signature and the Defendant has failed to
examine the scribe or the Advocate in whose presence the
documents were executed and instead have examined the other
three witnesses to prove the documents.
22. As there was mis-representation about nature of documents,
the Affidavit cum declaration and the power of attorney are held to
be void and not binding upon the Plaintiff. Point No.(III) is
accordingly answered in favour of the Plaintiff.
AS TO POINT NOS.(IV):
23. The evidence produced on record by the Defendant i.e. ration
card, electricity bills etc. would demonstrate that the Defendant is
in possession of the suit premises. However, it is necessary for the
Defendant to prove the legality of possession as in the absence
thereof, the possession of the Defendant would be of a mere
trespasser. As discussed above, the case of the Defendant of sale of
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the suit premises has not been established. Mere possession of the
Defendant from the year 2004, will not confer any right in the
Defendant to continue in possession and in the absence of any
vested possessory right in the suit premises, upon the Plaintiff
having established to be the recognised occupier of the suit
premises, the possession of the defendant qua the suit premises is
not valid and lawful and the Plaintiff is entitled to recovery the
possession.
24. The evidence of the Plaintiff corroborated by PW-2 is
consistent that for a sum of Rs.40,000/-, the Plaintiff had permitted
the Defendant to temporarily reside the premises and upon the
money being offered, the Defendant has refused to vacate and
deliver the possession. In light of the above, point No.(IV) is
answered in favour of the Plaintiff.
AS TO POINT NO.(V):
25. The suit filed on 12th day of April, 2010 seeks declaration that
the Affidavit cum declaration and Power of Attorney dated 26 th
April, 2004 are null and void and not binding upon the Plaintiff. The
specific case of the Plaintiff is that the Plaintiff had agreed to
execute promissory note/security agreement, however, the
Defendant got executed the Affidavit cum declaration and the
power of attorney. There was thus mis-representation about the
character of documents which were executed which would render
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fa 1248-13
the document void and will not be affected by period of limitation.
Point No.(V) is accordingly answered in favour of Plaintiff.
26. In light of the above, First Appeal fails and stands dismissed.
27. In view of dismissal of the First Appeal, the interim
applications do not survive and stand disposed.
[Sharmila U. Deshmukh, J.]
28. At this stage, request is made for extension of ad-interim
relief which was operating in favour of the Plaintiff for a period of
eight weeks. Considering that ad-interim relief was operating in
plaintiff's favour, the same is extended for a period of eight weeks.
[Sharmila U. Deshmukh, J.]
25 of 25
Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 25/03/2025 14:34:52
