1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1622 OF 2010 Fulabai Basappa Kore Petitioner versus Shirish Shgeetal Gatare and others Respondents S.S.Shah for petitioner. Rahul Kulkarni for respondents 1 and 2. CORAM : A.S.OKA, J. DATE : 11th March 2010 PC : 1. Heard learned counsel for the petitioner and learned counsel for the respondents. The petitioner is the original plaintiff. The petitioner has filed a suit for declaration and injunction. The petitioner claims to be the owner of the suit property. The petitioner entered into an agreement for sale in favour of second respondent. The agreement of sale is dated 7.3.2008 executed by the petitioner in favour of second respondent. In the suit it is contended that the power of attorney allegedly executed by the petitioner in favour of the 1st respondent is not binding and the document has been fraudulently procured. It is contended that the case made out by the first and second respondents that the petitioner has received sum of Rs.11.00 lakhs is false and only a sum of Rs.3.50 lakhs and an advance amount of Rs.10,000/- has been received by the petitioner. It is 2 contended in the plaint that though agreement was to execute power of attorney in favour of second respondent, by committing breach thereof, the power of attorney has been got executed in favour of first respondent. The first prayer in the suit, as stated earlier, is for declaration that the power of attorney is not binding on the petitioner. The second prayer is for injunction restraining the first and second respondents from creating any third party rights in favour of the suit property. Application made by the petitioner at Exhibit-5 for temporary injunction was allowed by the Trial Court. The Trial Court observed that the alienation of the suit property was in breach of the terms on which it was granted and, therefore, while granting temporary injunction, a direction was given to implead the Statement Government as a party. The appeal Court by the impugned order has interfered with the order of temporary injunction. 3. The learned counsel for the petitioner submitted that the agreement for sale was executed in favour of the second respondent. He pointed out that there is no material on record to show that the consideration fixed under the agreement has been received by the petitioner. He submitted that the case of the petitioner is that by practicing fraud, the power of attorney has been obtained in favour of first respondent. He submitted that under the agreement for sale, no right has been created in favour of the second respondent to effect the transfer of the property. He submitted that on the basis of power of attorney, the first respondent cannot execute any transaction in respect of the suit property. He submitted that though there is no material on record to show that the petitioner has received a 3 sum of Rs.11.00 lakhs under the agreement for sale, a finding to that effect has been recorded by the Appellate Court. 2. Learned counsel for the first and second respondents submitted that even the Trial Court has not recorded any prima facie finding on the case of fraud made out by the petitioner. He submitted that no interference is called for. 3. The petitioner is not disputing the execution of agreement for sale in favour of the second respondent. No case is made out by the petitioner that the said agreement is terminated. The Appellate Court has referred to the statement dated 10th July 2008 recorded by the Circle Officer of Jaisingpur of the petitioner. In the said statement, the petitioner has categorically stated that she has agreed to sell the suit property to the second respondent. She has stated that she has given the said statement to enable the grant of permission to sell the property to the second respondent. At that stage no grievance was made by the petitioner about any fraud. There was material placed on record to show that for conversion of the land to non-agricultural use and for obtaining permission for sale, an amount of more than Rs.35 lakhs has been paid by the first and second respondents. In paragraph 18 of the judgment of the District Court, it is observed that the respondents have spent considerable amount to develop the lay-out, for construction of roads and for construction of parapet wall for fencing the quarry. A prima facie finding is recorded that the respondents have acted upon the agreement and the 4 power of attorney and have spent a sum of Rs.47 lakhs. 4. Considering the aforesaid aspects, the Appellate Court has denied the equitable and discretionary relief of temporary injunction in favour of the petitioner. Therefore, it is not possible to find fault with the impugned order by which temporary injunction granted in favour of the petitioner was vacated. 5. The suit is pending and, therefore, further interests, if any, created by the respondents and development, if any, carried out by the respondents, will be naturally subject to final outcome of the suit. 6. Subject to what is observed above, no case for interference is made out. The writ petition is rejected. All contentions of the parties in the pending suit are expressly kept open. (A.S.OKA, J.)