1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.422 OF 2011 WITH CIVIL APPLICATION NO.597 OF 2011 Shri Sharad R. Patil & Anr. ...Appellants. v. Shri Samerjeet B. Singh & Ors. ...Respondents. Mr. A.A.Kumbhakoni i/by Mr. R.D.Suryavanshi ,advs. For the Appellants. Mr. A.G.Damle, adv. For the Respondent Nos.1 and 2. Mr. Hemant P. Ghadigaonkar, adv. For the R.Nos.3 and 4. Mr. Vishal Kanade, adv. For the R.Nos.5 and 6. CORAM : J.H. BHATIA, J. DATED : JUNE 7, 2011. P.C. 1 Heard the learned counsel for the parties. Perused the relevant documents. 2 Undisputedly, the plaintiffs/appellants are the owners of the land admeasuring 12,545 sq.mtrs. comprised in the Survey No.91, Hissa No.3 and Survey No.92, situated within the limits of the Village: Dhaniv, Nalasopara (E), Taluka: Vasai, District: Thane on the basis of a sale deed dated 24th December, 1981. According to the plaintiff on 8.5.2006, they entered into agreement with the defendant nos.1 and 2 for sale and development of the land survey no.92 part, admeasuring about 10,010 2 sq.mtrs. At the same time, they also executed the power of attorney for the purpose of development of the said land. Admittedly, power of attorney was not registered document. Defendant nos.1 and 2 had paid Rs.1.32 crores to the plaintiffs as a part of the consideration --- while according to the plaintiffs, they have refunded certain amount. For certain reasons, agreement could not be acted upon and the plaintiffs claim to have terminated the said development agreement as well as power of attorney by issuing notice dated 23.8.2008 to the defendant nos.1 and 2. According to the plaintiffs in spite of termination of the said agreement and the power of attorney, on 12.12.2008 the defendant nos.1 and 2 executed conveyance deed in favour of the defendant nos.3 and 4 in respect of the land survey no.92 to the extent of 4349.48 sq.mtrs. Similarly on the same date the defendant nos.1 and 2 also executed conveyance deed in favour of the defendant nos.5 and 6 in respect of 1392.81 sq.mtrs. from the survey no.91, Hissa No.3 and the survey no. 92. It comprised 250.81 sq.mtrs. out of survey no.91/3. Remaining land is part of the survey no.92. According to the plaintiffs, defendant nos.1 and 2 had no right, title or interest in the land survey nos.91 and 92. They were never given any power of attorney to sell the said land and particularly, there was no agreement between the plaintiffs and defendant 3 nos.1 and 2 in respect of land survey no.91. In spite of this and in spite of termination of the agreement and power of attorney on 23.8.2008, they executed above referred two conveyance deeds on 12.12.2008, therefore, these conveyance deeds are not binding on the plaintiffs. Plaintiffs claim to be in possession of the land. With these pleadings, plaintiffs filed Special Civil Suit No.6 of 2010 for declaration of title, possession and perpetual injunction in the Court of Civil Judge Senior Division, Vasai. At the same time, they also moved an application Ex.5 for temporary injunction restraining the defendants from causing any obstruction in their possession and from creating any third party interest in the suit property. 3 Defendants contested the application and according to them under the agreement for sale and development and power of attorney, defendant nos.1 and 2 were entitled to execute sale deed in favour of any party. They denied that the said agreement and the power of attorney were cancelled and according to them, the defendant nos.3 and 4 as well as defendant nos.5 and 6 purchased the said lands under the registered conveyance deeds. They are the bonafide purchasers for valuable consideration. They also claimed to be in possession of the property. The trial Court rejected the application for temporary injunction. Hence, this 4 appeal by the original plaintiffs. 4 On perusal of the relevant documents, particularly, the development agreement and power of attorney dated 8.5.2006 executed by the plaintiffs in favour of the defendants nos.1 and 2, it becomes clear that there was no agreement in respect of land survey no.91 and defendant nos.1 and 2 never got any right to deal with the property bearing survey no.91. Power of attorney, development agreement and the power of attorney were only in respect of land survey no.92. Therefore, per-se sale deed in favour of the defendant nos.5 and 6 to the extent of part of the land from survey no.91 is without any authority. It is material to note that the power of attorney gave certain rights to the defendant nos.1 and 2 for the purpose of development of the land survey no.92. After development, they could also enter into agreements for sale of the constructed premises but the power of attorney nowhere gives any right to the defendant nos.1 and 2 to transfer or sell the land itself. Admittedly, no development has taken place so far as no construction has been made and, therefore, stage of entering into contract with the third party for sale of the premises had never arisen. Under the agreement for sale and development as and when the defendant nos.1 and 2 would enter into any contract for sale of any premises, conveyance deed would be 5 executed only after the full payment is made to the plaintiffs. Particularly when there is no development or construction, question of any agreement in favour of the third party would not arise nor there is anything to show payment to plaintiff in respect of sale deeds in favour of defendant nos.3 to 6. Whatever rights were given to the defendant nos.1 and 2 under the agreement for sale and development and the power of attorney were also allegedly withdrawn by issuing notice of termination dated 23.8.2008. Of-course legality and effect of alleged termination is in dispute and, therefore, it is not necessary to enter into that controversy at this stage. 5 According to the defendant nos.3 and 4, they are in possession of 4349.48 sq.mtrs. out of survey no.92 as described in the sale deed dated 12.12.2008 in their favour. According to the defendant nos.5 and 6, they are in possession of land purchased by them out of survey no.91 as well as 92. As far as survey no.91 is concerned, as pointed out above, the defendant nos.1 and 2 had never any authority to deal with the said property and, therefore, the sale deed executed by the defendant nos.1 and 2 in favour of the defendant nos.5 and 6 to the extent of 250.81 sq.mtrs. out of survey no.91, Hissa No.3 is of no effect and does not give any right, title or interest to the defendant nos.5 and 6. 6 However, they also claim to be in possession of 1142 sq.mtrs. of the land out of survey no.92. Taking into consideration the fact that they have sale deeds in their favour and according to them termination of the agreement for sale cum development and power of attorney in favour of the defendant nos.1 and 2 was not valid and they have purchased property without any information or knowledge of such termination. While it will be necessary to protect the interest of the plaintiffs, it will also be necessary to protect the interest of the defendant nos.3 to 6 to some extent. In my opinion, the trial Court has not considered the facts and circumstances properly while rejecting the application for temporary injunction. Plaintiffs had made out prima-facie case for some reliefs atleast in respect of land survey no.92 which is not sold and also land survey no.91. Therefore, in the interest of justice , it will necessary to give some relief pending the suit. 6 In view of the above, appeal is partly allowed. Impugned order is set aside. Defendants shall not interfere in the possession of the plaintiffs over the land survey no.91. Defendants shall also not interfere in possession of the plaintiffs over the land survey no.92 (part) except the area , which was allegedly sold away in favour of the defendant nos.3 and 4 and 5 and 6 respectively under the two conveyance deeds, pending 7 the suit. None of the parties shall create any third party interest over the suit lands nor they shall make any development or construction pending the suit. 7 It is made clear that observations made in this order are only for the purpose of deciding the application for temporary relief. 8 As the appeal itself is finally disposed off, Civil Application No.597 of 2011 does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)