1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO.83 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard Shri R.R. Mantri, Advocate, for the appellants and Shri N.C.Garud, Advocate for Respondent Nos. 1 to 5 and 7 to 9. 2. Admit. By consent of both learned counsel, matter taken up for final disposal at the admission stage itself. 3. This appeal from order is directed against the judgment and orders passed by learned 5th Joint Civil Judge, Senior Division, Ahmednagar on 15.6.2009 on two applications at Exhibits 5 and 7 in Special Civil Suit No.87 of 2009. 2 4. Briefly stated, it is the case of the respondents that Respondent Nos. 1 to 3 are brothers, whereas Respondent No. 4 is their mother and Respondent No. 5 is sister of Respondent Nos. 1 to 3. Bhanudas Sahadu Kulange was the father of Respondent Nos. 1 to 3 and 5. Respondent Nos.6 and 9 were brothers of deceased Bhanudas. The suit property bearing survey No.126 situated at village Kedgaon and admeasuring 122.211 square meters was purchased by Sahadu-grand father of Respondent Nos. 1 to 3 in the year 1962 and Respondent No.8 started hotel in the name and style "Pandurang Bhuvan". Subsequently, part of the property was sold to husband of Respondent No.6. Thereafter, appellant No.1 took over said hotel "Pandurang Bhuvan" on rent. Sahadu died on 19.3.1976. Thereafter appellant No.1 started Chicken hut and then hotel Surya in the premises of Hotel Pandurang Bhuvan. From time to time for the purpose of the hotel, appellant No.1 used to take signatures/thumb impressions of Respondents on various 3 documents. Appellant No.1 in the course of time became successful political leader. He was elected on the municipal council. Respondents had full faith and confidence in appellant No.1. In fact, appellant Nos.1, 3 and 5 were sons of Godabai who was sister of deceased Bhanudas and Respondent Nos. 6 to 9. Appellant No.2 is the wife of appellant No.1. Appellant Nos. 3 and 5 are brothers of appellant No.1. Appellant No. 4 is wife of appellant no. 3 and appellant No.6 is appellant No.1's uncle's wife. 5. It is also the case of respondents-plaintiffs that due to faith and confidence reposed by them in appellant No.1 who is their close relative, they executed two general powers of attorney in favour of appellant No.1 on 1.2.2008 and 6.2.2008 respectively. According to the respondents, taking advantage of the said general powers of attorney and the confidence they had in appellant No.1, appellant No.1 has created various false documents . He represented to 4 Respondents that the land under Hotel `Pandurang Bhuvan' was in the name of Respondent No.1. Appellant No.1 was running a hotel and Respondents were residing at different places and since their signatures were often required, appellant No.1 asked them to execute general powers of attorney in his favour and trusting him, the respondents executed such powers of attorney. 6. According to respondents, in February 2008, appellant No.1 brought a notary with him to their house and and making the respondents believe that the Respondents have to merely sign the the general powers of attorney copy of which was shown to respondents earlier, in haste appellant No.1 obtained their signatures/thumb impressions on those documents. No attesting witness was then present and in February 2009, respondents realized, when they obtained 7x12 extract, that appellant No.1 had cheated them and had executed sale deeds on their behalf in favour of appellant Nos. 2 to 6 for Rs. 5 31.00 lakhs. The sale deed is dated 31.12.2008. It is in these circumstances that the Respondents filed suit for declaration that the said sale deed is bogus, false, illegal and void and also for permanent injunction. 7. It is the case of the respondents that except survey No.126 of village Kedgaon on which Hotel `Surya' is run, no other property was in possession of the appellants. Possession of those properties was never delivered to the appellants and, therefore, they filed applications at Exhibit 5 for temporary injunction restraining appellants from interfering and obstructing their possession over suit properties and application Exh.7 for temporarily injuncting the appellants from transferring or creating third party interest in the suit properties. 8. The present appellants-defendants appeared in the suit and by common written statement at Exh.22 denied that the agreement of sale was obtained by 6 fraud and the sale deed was executed by appellant no.1 by fraud. It is stated that prior to the sale deed, an agreement of sale was executed. Consideration amount of Rs.31.00 lakhs was paid. Rs.12.00 lakhs were paid as stamp duty. The appellants are in possession of the properties and taxes in respect the said properties are being paid by them. Appellants, therefore, prayed that both the applications, Exh. 5 and Exh.7 be dismissed. 9. Learned 5th Civil Judge, Senior Division, Ahmednagar, by common order allowed application Exhibit 5 for temporary injunction in respect of the properties other than survey No.126 and also granted application exhibit 7 thereby restraining appellants from transferring or otherwise creating third party interest in respect of those properties. As against same this appeal is filed. 10. Following points arise for my consideration. 7 1. Whether the respondents have proved their case prima facie ? 2. Whether the balance of convenience is in favour of the respondents ? 3. Whether irreparable loss will be caused to respondents if injunction is not granted ? My findings on the above points are:- (1) Yes. (2) Yes (3) Yes. 11. Shri R.R.Mantri, learned counsel for the appellants and Shri N.C.Garude, learned counsel for Respondents No.1 to 5 and 7 to 8 took me through various documents produced on record, so also the pleadings of the parties and the order passed by the trial court. Learned Advocate Shri Mantri submitted that injunction not to alienate the property should have been issued also against present respondents. However, 8 by virtue of the sale deed, entries are made in 7x12 extract showing appellants Nos. 2 to 6 as owners of the properties. In the circumstances, in an application which is filed by the respondents, no injunction could have been issued restraining the respondents from transferring or alienating or creating third party interest in respect of the suit properties. 12. Advocate Shri Mantri also submitted that while deciding application Exhibit 5 for temporary injunction, learned trial judge mainly relied upon infirmities in the case of the appellants instead of deciding the issue whether the respondents- plaintiffs had made out prima facie case. Learned counsel also argued that it is not disputed that there are signatures and thumb impressions of the respondents on the General Powers of Attorney executed in favour of appellant No.1. He also pointed out mutation entry bearing No.34223 which shows that on 20.5.2008 Kisan Baraskar and Ravindra Baraskar purchased from 9 Respondent No.7-Gorakhnath Kulange 50 R land out of survey No.397/1 totally admeasuring 2.80 R. situated at village Kedgaon for Rs.9,00,000/=. So, according to learned Advocate Shri Mantri, it is not that Respondents had no necessity to sell the property and were not interested in the sale of property. 13. However, it is worth noting that the said mutation shows that the sale deed was executed on 20.5.2008 and after sale of 50 R land, only land admeasuring 2.30 R. was remaining with respondents. Therefore, subsequent to 20.5.2008, Respondents could have entered into transaction only in respect of land admeasuring 2 Hectare 30 R. and this circumstance is used by respondents and accepted by the trial court to show that the so called agreement of sale is a false one. While considering this aspect, the trial court in paragraph 15 of its order has referred to various circumstances which created serious doubt regarding genuineness of the 10 agreement of sale produced on record. A copy of the sale agreement of sale is produced at annexure A with civil application No.7234 of 2009 filed with this Appeal from Order. It is stated that the said agreement of sale was executed by Respondent Bhanudas-father of Respondent No.1 and Respondent Nos. 6 to 9 in favour of Appellant Nos. 2 to 6. Name of appellant No.2 was mentioned twice, one at serial No. 1 and then at serial No. 5 as purchaser and the name of appellant No.4 Vandana is also repeated at serial Nos. 3 and 6. 14. The learned trial judge observed that this document is suspicious and the same is stated to be dated 28.9.2004 which is a date subsequent to mutation No.34223 dated 20.5.2008. Though the agreement of sale is a type- written document the words "_________________) (i.e. out of 2 Hectare 30 R.) have been added at three places in hand. One addition is at the cause title and twice on page 2 of the document. It is stated that already there was sale of 50 R. land. 11 Thus, there could not have been agreement of sale in respect of 2 Hectare 80 R. land and the words in hands are written subsequently and that is more clear from page 2 in which the words "______" (i.e. entire) are still there. It is also noted that the names of Visvanath Sahadu and Bandu Sahadu (Respondent Nos. 8 and 9) were not mentioned and their signatures are at such places which clearly indicated that those might have been obtained subsequently. Moreover, it is also noted that the document was typed on 28.9.2008 and though the amount of Rs. 30,00,000/= is said to have been paid as earnest money, that portion is written in hand instead of incorporating the same by typing. So, the trial court held that the agreement of sale produced on record was prima facie of suspicious nature. 15. The trial court also held that there was no evidence to accept interested contention of the appellants that they were in possession of properties other than survey No.126 12 situated at village Kedgaon and it is stated that though appellant No.1 was holder of General Power of Attorney of the respondents, he was not in possession of other three lands and there is nothing on record to show that actual possession was delivered. There was no affidavit of any neighbouring land holder. The photographs produced are not sufficient. 16. Considering the close relations between the parties and totality of the circumstances stated in the plaint & as appearing from documents in my opinion, the view taken by the trial court is reasonable. Prima facie case is made out by the respondents that they are in possession of suit lands other than survey No.126 at Kedgaon on which there is hotel `Surya'. In view of suspicious circumstances surrounding the agreement of sale, balance of convenience is in favour of the respondents. There is threat of their dispossession. So I answer all points in favour of the respondent. This is not a case where any interference is 13 called for, more so when the trial court has considered all the aspects in details. 16. Hence, appeal from Order is dismissed. Date:03/08/2009 (P.R.BORKAR, J.) pnd/83.09