1 AO463-11.sxw jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 463 OF 2011 Mr. Prakash Hamirmal Jain .. APPELLANT Versus 1. Ramchandra Gajanan Patil 2. Ramesh Gajanan Patil 3. Nandkumar Gajanan Patil 4. Smt. Kashibai Dayaram Bhoir 5. Smt. Kusum Naresh Mhatre 6. Smt. Champubai Prakash Tangdi 7. Smt. Mankubai Shankar Patil 8. Smt. Maltidevi Mahadeo Patil 9. Smt. Chandravati (Rena) Ramesh Mhatre 10.Bipin Shankar Patil 11.Devendra shankar Patil 12.Meghnath Shankar Patil 13.Bharat Shankar Patil-Since deceased through legal heirs. 13/1. Smt. Vimla Bhart Patil 13/2. Miss. Anjali Bharat Patil 13/3. Miss. Vaishali Bharat Patil 13/4 . Miss. Vandana (Nirmal) Bharat Patil 13/5 . Jayraj Bharat Patil 13/6. Milind Bharat Patil 2 AO463-11.sxw 14.Smt. Meena Namdeo Patil 15.Smt. Naina Anand Patil 16.Smt. Vimala Rajaram Sawant- Since Deceased through 16/1 Miss Swati Rajaram Savant 17.Dhansukhlal Maganlal Limbachia .. Respondents Mr. A. A. Kumbhkoni i/by Mr. Sandesh Patil for the appellant Mr. Swanand Ganoo i/by Mr. P. P. Jadhav for Respondent Nos. 1, 3, 5, 6 and 11 Mr. P. S. Dani i/by Tanu Khatri for Respondent Nos. 4, 14, and 16/1 Mr. Anil Singh i/by Mr. Dharmesh Jain for respondent No. 17 Mr. Vinit Naik a/w Mr. Tushar Sonawane for Respondent No.1 2 Mr. R. A.Thorat a/w Mr. Tushar Sawant for Respondent Nos. 7 to 10 and 13/1 to 13/6 CORAM: MRS. MRIDULA BHATKAR, J. ( Date of reserving the judgment : 6.9.2011 Date of pronouncing the judgment : 19.9.2011) JUDGMENT 1. Admit. 3 AO463-11.sxw 2. By consent of the parties taken up for final hearing at the stage of admission. 3. The learned 2nd Joint Civil Judge, Senior Division, Thane, by his order dated 18/4/2011 passed in Special Civil Suit No. 434 of 2010, has rejected the interim reliefs to the original plaintiff i.e. the appellant herein; so this appeal. 4. Respondent Nos. 1 to 16 ( original defendants) are the owners the suit property. They all being co-owners, have undivided shares in the suit property. Respondent nos.1 to 16, as per the case of the appellant (original plaintiff), have entered into agreement of sale on 25/5/1982 and have also executed an irrevocable power of attorney in favour of respondent no. 17, on 2/6/1982. Respondent no.17 was put in possession of the suit property on receipt of the full and final consideration thereof. Respondent no. 17, as an attorney holder, on 15/4/2010, executed a deed of conveyance in favour of the appellant and the appellant thus is put in possession of the suit property since then. 5. One Balkrishna Patil was the original owner of the suit 4 AO463-11.sxw property. He had three children namely Gajanan, Shankar and Namdeo. None of them is alive. respondent Nos. 1 to 16 are the legal heirs of these three sons. Out of them, respondent No. 12 is the main contesting respondent and respondent Nos. 7 to 10, 13/1 to 13/6 are also opposing the appeal. Rest of the respondents are supporting the case of the appellant. 6. The appellant has relied on the original agreement of sale which was executed on 25.5.1982 by the respective fathers (Gajanan, Shankar and Namdeo) of the respondents and the respondents and the irrevocable power of attorney dated 2/6/1982 executed by the respondent Nos. 1 to 16 in favour of respondent no.17. Mr. Kumbkoni, the learned senior counsel for the respondent No. 17 submitted that the respondent No. 17 came in possession of the suit property immediately after the execution of agreement of sale. The respondents gave power of attorney in favour of respondent no. 17 in respect of the suit property to create any interest, title, to sale that property to any third party etc. and thus, the rights created in favour of respondent no. 17 were assignable. After the agreement of sale dated 25/5/1982, name of respondent no. 17 was entered into record of rights. The learned 5 AO463-11.sxw counsel relied on the mutation entry No. 2558 on Property Card in Form No.6, showing mutation in favour of the respondent no. 17 in respect of the suit property and right was created in the year 1982. The learned senior counsel argued that respondent no. 17 was in possession of the suit property since then and thereafter, on 15/4/2010, he executed deed of conveyance in favour of the appellant. The appellant thereafter applied for converting this agricultural land into non agricultural land and the N. A. permission was granted in favour of the appellant by the Collector, Thane on 22/12/2010. The appellant being a developer, wanted to develop the suit property and therefore applied to the corporation for the construction and submitted the plans. The corporation passed the plan subject to certain conditions and permission to commence the construction upto the plinth was granted by an order dated 15/1/2011. The learned senior counsel argued that since 1982, till 2011, the respondents did not come forward or raised any objection to the peaceful enjoyment of possession of the suit property by respondent no. 17. The appellant has acquired the possession and title through respondent no. 17. As the respondent No.17 was holding power to sale or to create any interest in the suit property or to enter into agreement with the third party on the basis 6 AO463-11.sxw of the irrecoverable power of attorney property is transferred through registered deed of conveyance in favour of the plaintiff. Mr Kumbhkoni argued that the appellant has made levelling of the suit property by filling additional sand, rubble etc. He pointed out that for doing this, the appellant is penalized. The learned counsel relied on the photographs showing that the appellant is in possession of the suit property. The learned counsel submitted that the suit is filed by the appellant for permanent injunction against the respondents that they should not disturb his possession and seeks declaration that the sale deed dated 25/5/1982 is legal and valid and also seeks negative declaration that the respondent Nos. 1 to 16 have no right, title and interest in the suit property and they are not the owners of the suit property. He argued that the order passed by the learned Civil Judge is erroneous as the the learned Civil Judge has not taken into account the fact that since so many years respondent No. 17 was in possession of the suit property and appellant is having possession of the suit property since 2010 through respondent no.17. He argued that the learned Civil Judge ought to have appreciated that the respondents and their respective fathers have entered into agreement of sale and have executed irrevocable power of attorney in favour of respondent no. 7 AO463-11.sxw 17 and they have received full consideration against the suit property. 7. The counsel appearing for respondent nos. 1 to 6, 11 and respondent no. 17 are supporting the appellant. It is argued by them that the respondent no. 12 has not made out the theory of ouster and hence, unless the ouster is set up, the submission of the respondent no. 12 that he has undivided share in the suit property and he is in possession of the suit property cannot be accepted. The learned counsel submit that the order passed by the Civil Judge is to be set aside. 8. Mr. Naik, the learned counsel for respondent no. 12, submits that it is a chance litigation filed by the appellant and the title of the appellant is doubtful. On which date the alleged possession was handed over either to the respondent no. 17 or to the appellant is not specific. Unless the appellant proves the legal and valid possession, no order or relief in favour of the appellant can be passed at the interim stage. The learned counsel pointed out the relevant clause in the sale deed entered into between respondent Nos. 1 to 16 and respondent no. 17, and submits that 8 AO463-11.sxw sale deed was not executed by all the parties. The respondent no. 17 should have filed a suit for specific performance of the agreement of sale. It is submitted that ownership of the suit property was never transferred in favour of the respondent no. 17 by agreement of sale by the contesting respondents. Mr. Naik submitted that specific performance is the only remedy to get the title and ownership of the suit property, instead, the suit for injunction and declaration is filed by the appellant and the prayer of declaration cannot be awarded to the appellant in such suit, which is based on the agreement of the sale. He submitted that both, the agreement of sale and the irrecoverable power of attorney are the unregistered documents, which did not transfer any right in favour of the respondent no. 17, much less the appellant. The suit for specific relief also ought to have been filed within limitation. He further submitted that the sale cannot be actualized under section 54 of the Transfer of Property Act. He submitted that respondent No. 12 was 17 years old at the time of execution of the agreement of sale. He being a minor, no permission of the authority was obtained by his father so, respondent no. 12 has never transferred his right and share in the property in favour of respondent no. 17. He submits that the 9 AO463-11.sxw respondent No. 12 has undivided share in the suit property and he is in actual possession of the suit property. The respondent no. 12 is cultivating rice in the suit land and he is in possession of the paddy fields in the suit land. 9. Mr. Naik argued that the title of respondent no. 17 is incomplete for want of consent by all the parties to the agreement. All the parties have not agreed to sale the property and no conveyance was executed. He submitted that before executing the conveyance deed dated 15/4/2010 between respondent no. 17 and the appellant, a public notice was given by the appellant and the respondent no.12 raised objection to the notice on 2nd November, 2009. Mr. Naik submitted that thus, the respondent no. 12 is contesting the title and possession of the appellant since November, 2009 therefore, the suit was filed by the appellant to acquire possession by abuse of process of law. He submitted that no injunction can be granted against the true owner and therefore, the trial Court has rightly rejected the injunction sought by the appellant against the owner who are respondent nos. 1 to 16. He submits that unless the finding is perverse, the order is not to be set aside in appeal. On the point of filing suit for specific 10 AO463-11.sxw performance is a proper remedy, he relied on the judgment of the Supreme Court in Bharat Karsondas Thakkar vs. Kiran Construction Co. & ors., reported in (2009) 13 SCC 46 and the judgment of this Court in Ashok Kumar Dulichand Sharma (since deceased) vs. Jethmal Motilal Jedia & ors., reported in 2009 (5) Bom. C.R. 588. 10. There are some undisputed facts. Balkrishna Patil was the original owner of the suit property and after his death, his three children namely Gajanan, Shankar and Namdeo alongwith the other respondents entered in to an agreement of sale of the suit property on 25/5/1982. Respondent No. 12, the main contesting respondent was minor i.e. 17 years old at the time of execution of the documents. The respondents and their respective fathers have executed the power of attorney on 2/6/1982 in favour of respondent no. 17. Respondent No. 17, thereafter, entered his name in the records of right in the year 1983 and the said mutation entry is not objected by the said three brothers – Shankar, Gajanan and Namdeo or the respondent Nos. 1 to 16. It is not disputed that , no deed of conveyance in respect of the suit property was executed between the parties i.e. respondent no.17 and 11 AO463-11.sxw respondent nos.1 to 16 subsequently. The appellant claims his right in the suit property through respondent no. 17. 11. Some facts are disputed but prima facie proved. By deed of conveyance dated 15/4/2010, respondent No. 17 sold the said property to the appellant for consideration of Rs.61,44,000/-. Right of respondent no. 17 to sell such property is challenged by the other respondents. Power of attorney dated 2.6.1982 was never revoked or challenged by any one of the respondents. Although the sale deed between the respondent no. 17 and respondent Nos. 1 to 16 about the suit property was never executed, the respondent no. 17 through the irrevocable power of attorney, by which the developmental rights were assigned to him, executed the deed of conveyance in favour of the appellant. 12. The reliefs prayed for by the appellant in the suit are to be seen. The appellant-plaintiff has filed the suit for injunction and declaration and valued the suit for Rs.61,44,000/-. In prayer clause 18(a), (b) and (c), the appellant-plaintiff prayed for declaration that the deed of conveyance executed by respondent no. 17 in his favour on 15/4/2010 as legal, valid and subsisting, he is absolute 12 AO463-11.sxw owner of the property and is in lawful possession of the suit property. In prayer clause 18(c), the plaintiff seeks negative declaration that defendant Nos. 1 to 16(1) or any other person claiming through the defendants have no right, interest and claim in the suit property. 13. The submissions of the learned counsel for the contesting respondents on the point of ownership and title do hold substance as there are certain arguable issues in respect of the transfer of title and ownership of the suit property on the basis of unregistered agreement of sale and unregistered power of attorney so also the maintainability of the suit in respect of the reliefs of declaration prayed by the plaintiff. An agreement of sale does not confer title and if any equitable relief has been created in favour of the party, no equitable interest could pass on in favour of the party for want of registered sale deed. Respondents no.1 to 16 are not party to the conveyance on which plaintiff is relying and claiming declaration. If prayer of declaration is main relief and injunction is a consequential one, then suit may not stand. However, the relief claimed in the present suit in clause 18(d) is for injunction against the respondents that they should not disturb the 13 AO463-11.sxw possession of the plaintiff without following due process of law and the interim relief claimed in clause 18 (e) is limited issue before the Court. Therefore, at the interim stage, the Court need not adjudicate other issues i.e. of declaration or title. 14. The the principles governing grant of interim injunction are well settled. When the plaintiff seeks relief of interim injunction that defendants should not disturb his possession, then as a first and foremost condition, the burden is on the plaintiff to show prima facie that he is in possession of the suit premises. 15. In the case in hand, the possession of the plaintiff is disputed by the contesting respondents as they claim that they are in continuous possession of the suit property. Mr. Dani, the learned Counsel for Respondent Nos. 4, 14, and 16/1 who are supporting the plaintiffs, has submitted that the contesting respondent's submissions are to be rejected because they have not set up the theory of ouster. I am of the view that whether the defendants set up the theory of ouster or not is not relevant because the orders of injunction are (to be) issued not on default of any person but on the basis of prima facie case made out by the 14 AO463-11.sxw plaintiff and to prevent the abuse of process of law and to prevent the further damage. 16. The appellant claims possession through respondent no. 17. The plaintiff has produced power of attorney and agreement of sale executed by the fathers of the respective respondents and also the defendants in favour of the defendant no. 17. It shows that the authority is given to defendant no. 17 to enter into further transaction in respect of the suit property and other assignable development rights. The said power of attorney which is of the year 1982 is not revoked or challenged at any time by either of the defendants, except by way of defence in this suit. It is already made clear that no suit for specific performance was filed by the defendant no. 17 for execution of sale deed and performance of the contract against the respondents. Therefore the creation of third party interest and transfer of the suit property (on the basis of agreement of sale ) is defective and invalid. However, this particular transaction is based on the authority derived from unregistered power of attorney executed in favour of the respondent no. 17. It is relevant to note that the said power remained dormant, unused for a long period of 28 years. The 15 AO463-11.sxw contesting respondents, if do not want to ratify the acts and deeds of the attorney holder on any valid ground, then it is open for them to take appropriate legal action. However, till today it is not so taken. 17. The appellant has given few instances of his being in possession of the suit property. (a) He produced one extract in Form No. 6 which was issued on 30/8/2010. The said extract shows that the name of the plaintiff was entered into records of right by mutation entry No. 130 and that the appellant has purchased the property for Rs.61,44,000/- from respondent no. 17. It also shows that one Vidyadhr Ganpat Patil had raised objection in that regard by filing appeal before the Sub Divisional Officer, Thane and the said appeal was dismissed on 3/8/2010. The said order is not challenged by the contesting respondents. (b)The plaintiff has applied for conversion of the agricultural land into Non Agricultural Land. The Plaintiff has produced N. A. Order dated 22/12/2010 issued by the Collector in his favour. It is submitted that before granting N. A. 16 AO463-11.sxw permission for converting into land, enquiry was conducted by the Office of the collector and then only it was granted. (c) The appellant relied on the Commencement Certificate dated 15/1/2011 issued by the Mira Bhayandar Municipal Corporation. It is submitted that the appellant being a developer builder, , he wanted to develop the suit property and therefore applied to the corporation for the construction and submitted a plan thereof. The corporation vide the said order dated 15/1/2011, passed the plan subject to certain conditions and granted permission to commence the construction. (d)The appellant further relied on the photographs disclosing the display board of his work and some portion of compound wall constructed by him is visible. (e) The appellant also relied on the declarations signed by some of the respondents including the contesting respondents that the purchaser i.e. Respondent No. 17 was already put in possession of the suit property with a view to construct and develop the said plot. (f) He also relied on the declaration dated 20/5/2010 signed 17 AO463-11.sxw some of the respondents, wherein they have said that though some of the respondents raised objections on 4/11/2009 to public notice given by the plaintiff on 24/10/2011 in daily newspaper 'Navshakti', they were satisfied after due enquiry and discussion with the appellant that they had no right, interest and claim in the suit property and therefore they withdrew their objections and they have confirmed said transaction of conveyance in favour of the appellant. (g)Show Cause Notice was given by the Tahsildar, Thane to the appellant for unauthorizedly filling the land is produced to establish the possession of the appellant. Flying Squad of Tahsildar Office has pointed out to the Tahsildar that the appellant has levelled the suit land by filling it with additional rubble, debris, sand etc. and thus, he has committed an offence punishable under Section 48(7) of the Maharashtra Land Revenue Code 1969 and so penalty of Rs.10,38,800/- was imposed on him. This notice shows the possession of the appellant. 18. The notice given by Tahsildar for unauthorized levelling 18 AO463-11.sxw the suit land may appear as a good evidence to show that the plaintiff is in possession of the suit land, however, it is to be noted that the contesting respondents have complained about the unauthorized levelling of the suit land to the office of the Tahsildar and thereafter this action was taken. The photographs and this unauthorized act of levelling the land establish that the plaintiff has done this on the suit land. The entries in the revenue record will show the creation of interest and right in the land in favour of the plaintiff. This is not sufficient prove actual juridical possession of the suit land. Issuance of N.A. order, sanction of building plan and grant of commencement certificate though show that the appellants right in the suit property is created, it is not a prima facie satisfactory proof or evidence of possession, especially when it is controverted by the other party. 19. The contesting respondents admittedly have not challenged either agreement of sale or power of attorney and the entries in the name of Defendant no. 17 in the records of right from the year 1983 till 2009. This lapse on their part do not establish that the defendant no. 17 or the plaintiff are in possession of the suit land through out. The documents produced by the 19 AO463-11.sxw appellant which are referred above would have been sufficient otherwise to hold the possession of the plaintiff, however, here are some circumstances and documents which create doubt about the possession of the plaintiff of the entire suit land. 20. Both the parties have produced 7/12 extracts of New Survey No.7 Hissa No.5 of the year 2008-2009, New Survey No.8 Hissa No.4 of the year 2008-2009 so also 7/12 extracts of old Survey No.204 Hissa No.4 (New Survey No.8 Hissa No.4) of the year 1994-95, and old Survey No.205 Hissa No.5 (New Survey No.7 Hissa No.5) of the year 1994-95. These 7/12 extracts of different years disclose that the land is under cultivation. They show paddy field 32.4 R from new Survey No.7 Hissa No.5 and 3.4 R Rice/paddy field in New Survey No.8 Hissa No.4 is under cultivation. 7/12 extracts of old survey Nos. of the year 1994-94 disclose the name of defendant no.17 as Kabjedar (possessor). The person who cultivates is shown as owner (khudda). All the contesting respondents are agriculturist and defendant no. 17 has not claimed to be an agriculturist. 21. The learned Trial Judge has relied on Panchanama 20 AO463-11.sxw dated 24/2/2011, which was drawn pursuant to the complaint/ application made by the contesting respondents to the Minister in respect of the illegal and unauthorized activities carried out by the appellant of filling the land. Panchanama discloses that the contesting respondents have complained about the unauthorized filling of the land by the appellant to the police, however, no action was taken by the police and so the appellant filled up the land till December, 2010. The panchanama also discloses that paddy field is damaged because of land filling upto 6 to 7 ft. height. This panchanama is controverted by the learned counsel for the appellant. It is submitted that the Circle officer has addressed a letter dated 11//5/2011 to the advocate of the appellant informing that the that said panchanama was false and he confirms that the land belongs to the appellant and the ownership and possession vests with the appellant. 22. Although the letter of Circle Officer was acquired after the judgment of the trial court and was not before the Trial Court at the time of delivering judgement, in all fairness, it is considered along with the Panchanama. Said panchanama is dated 24/2/2011 and the letter is written by the Circle Officer on 21 AO463-11.sxw 11//5/2011 i.e. about 3 months thereafter. The same circle officer who has drawn the Panchanama has confirmed in his letter that the contesting respondent- one Mr.