1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. APEAL FROM ORDER NO.:126 OF 2011 WITH CIVIL APPLICATION NO.:9464 OF 2011 IN APEAL FROM ORDER NO.:126 OF 2011 *** Anil Murlidhar Sonwane VERSUS Padmakar Joharilal Salecha Thr Spl.p.a. Joharilal Bhurmalji Salecha And Ors *** Mr. Kakde Sunil B , Advocate for Petitioner Mr. A.G.P. for Respondent/State Authorities Caveat Filed By Girish Rane For R/1caveat Filed By Girish Rane For R/1(waives Service *** WITH APEAL FROM ORDER NO.:135 OF 2011 WITH CIVIL APPLICATION NO.:9583 OF 2011 IN APEAL FROM ORDER NO.:135 OF 2011 *** Rajesh Rohitlal Mishra And Ors VERSUS Padamkumar Joharilal Salecha And Ors *** Mr. R. R. Mantri, Advocate h/f Mr. Deshmukh Bhausaheb S., Advocate for Petitioner Mr. P. M. Shah, Senior Counsel h/f Mr. Girish Rane, Advocate for respondent No.1. Mr. Dhananjay K. Thote, Advocate for Respondent Nos.3, 5, 6 and 7. *** 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. 1. Appeal from Order No.126 of 2011 is directed against the judgment and order dated 30th April, 2011 passed by the learned 2nd Joint Civil Judge, Senior Division, Jalgaon below Exhibit-6 in Special Civil Suit No.202 of 2008 and Appeal from Order No.135 of 2011 is directed against the judgment and order dated 30th April, 2011 passed by learned 2nd Joint Civil Judge, Senior Division, Jalgaon below Exhibit-6 in Special Civil Suit No.203 of 2008. 2. The Respondent in A.O. No.126 of 2011 i.e. original plaintiff, has filed Special Civil Suit NO.202 of 2008 before learned 2nd Joint Civil Judge, Senior Division, Jalgaon against the Appellant herein and Respondent Nos. 3 to 10 claiming relief of perpetual injunction and declaration in respect of the suit property/ plots. In the said suit, the plaintiff has filed application for temporary 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. injunction restraining the Respondents from creating any third party rights etc. in suit property. So also the Respondent No.1 and 2 in A.O. No.135 of 2011 i.e. original plaintiffs have filed Special Civil Suit No. 203 of 2008 against the Appellant and Respondent No.3 claiming relief of perpetual injunction and declaration in respect of the suit property/ plots. In the said suit, the plaintiff has filed application for temporary injunction restraining the Respondents. 3. The Appellants in both the A.O. appeared in the matter and filed say/ written statement to the application for temporary injunction. The trial Court heard the application for injunction and allowed the same. Being aggrieved by the judgment and order of the trial Court, allowing application for temporary injunction, the present Appeals from Order are filed. 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. 4. Learned counsel appearing for the Appellant submits that the Respondent No.1 has executed power of attorney in favour of Respondent No.2 [AO 126 of 2011] on 29th September, 2007. Respondent No.2 executed sale deed in favour of the Appellant on 8th July, 2008. The learned counsel appearing for the Appellants invited my attention to relevant paragraphs of the impugned judgment and submitted that though sufficient evidence was not placed on record by the plaintiffs, the trial Court recorded the conclusion that the plaintiff was out of India and the alleged power of attorney seems to be false, bogus and fabricated. The sale deeds dated 8th July, 2008 executed by alleged power of attorney holder are also not legal and valid in the eyes of law and the defendants cannot claim any title or right over the suit property on the basis of the said disputed 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. sale deeds. Learned counsel also invited my attention to further observations of the lower court in the impugned judgment and submitted that, the observations by the trial Court that the power of attorney as well as the sale deeds in question seems to be false, bogus and fabricated has no basis. In fact, no sufficient evidence was brought on record by the plaintiffs so as to come to the conclusion which is recorded by the learned trial Court in paragraph 15 of the impugned judgment. Therefore, according to the learned counsel appearing for the Appellants, the findings recorded in the impugned judgment are without basis. The observations by the trial Court that the thumb impression and signature of power of attorney appears to be bogus, is without any basis. No any document is placed on record by the plaintiffs and, therefore, the learned 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. counsel for the Appellant would submit that the Appeals from Order deserve deserve to be allowed. 5. On the contrary, learned senior counsel Mr. Shah appearing for the Respondents submitted that the reasons recorded by the trial Court are on the basis of evidence/ documents which were placed on record by the parties. The learned senior counsel further submitted that the Respondent nos.1 claims to be power of attorney of the plaintiffs. The Respondent No.2 is purchaser of the suit property. Respondent Nos.3 and 4 are attesting witnesses to the sale deed. Respondent No.5 is notary before whom alleged power of attorney was executed. The Respondent Nos.6, 7 and 8 are also involved in preparing forged and fabricated documents, therefore, they are also added as defendants in the suit. Learned senior counsel 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. submitted that the alleged power of attorney is dated 29th September, 2007, however, on the said date the plaintiff was not in India. He left India on 28th September, 2007 and went to Singapore. Therefore, there was no question of giving power of attorney in favour of Respondent No.1 on 29th September, 2007. Learned senior counsel further submitted that the signatures on the alleged power of attorney and also on sale deeds are forged, different photograph is affixed on the said sale deed. The said alleged document of power of attorney is not registered. Learned senior counsel further submitted that the suit property is purchased by the plaintiff on 27th September, 2007 from "Lake View Developers". The learned senior counsel submitted that the alleged sale deed is dated 8th July, 2008. Learned counsel invited my attention to the fact that before 8 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. executing sale deed there was no prior agreement to sell. No public notice was given, neither any objections were invited before executing such sale deed. The learned senior counsel further submitted that, the amount which is shown towards consideration appears to be shown in cash. According to learned senior counsel, if any amount is to be given which is above 20,000/- said amount cannot be given in cash. Therefore, according to him, the entire story put forth by the defendants is concocted. There was no execution of any power of attorney or execution of the sale deed by the plaintiff or by any other person on behalf of the plaintiff. The documents i.e. power of attorney and sale deed are bogus and fabricated documents which are prepared by the Respondents in connivance with each other. 9 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. 6. Learned counsel Mr. R. R. Mantri, appearing for the Appellant in Appeal from Order No.135 of 2011 submitted that there was no occasion for the original plaintiff to give public notice on 21st June, 2008 in respect of suit property. It is further submitted that the plaintiff has given notice to the Sub Registrar on 30th June, 2008 that the Registrar Office should not register any transaction in respect of the suit property. According to the counsel for the Appellant, the plaintiff knew that he wish to sale the property in future. Learned counsel for the appellant further submitted that on 8th July, 2008 by way of registered sale deed the property is purchased by the Respondent No.2. The amount of Rs.65 Lacs has been paid towards consideration. 7. Learned counsel appearing for the Appellant invited my attention to paragraph 8 10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. of the impugned judgment and submitted that, the inference drawn by the trial Court that on the date of execution of power of attorney, the plaintiff was not present in India, is without any basis. According to him, the trial Court has considered the entires in the passport and on the basis of the said entries the trial Court has observed that since from perusal of these entries it appears that the plaintiff has not entered in India and, therefore, on the relevant date he was not present in India, is perverse finding. He further submits that the Court has not dealt with the aspect who is in possession of the suit property, whether the plaintiff is in possession or the defendants are in possession of the suit property. Learned counsel further submitted that no evidence produced on record would suggest that on the relevant date the plaintiff was 11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. in Singapore. Learned counsel further submitted that the direction given to the revenue authorities, not to take revenue entries is beyond jurisdiction and power of the trial Court. In fact, certain judgments of this Court and Apex Court were brought to the notice of the trial Court. However, the trial Court without assigning any reason, directed the revenue authority not to record entries in the revenue record. Learned counsel, therefore, would submit that the appeal from order and the civil application deserve to be allowed. 8. The learned senior counsel appearing for original plaintiff submitted that, the trial Court, taking into consideration the evidence brought on record, and after appreciating the rival contentions, has allowed the application filed by the original plaintiff and granted the injunction. Therefore, this 12 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. Court may not interfere in the Appeals from Order. Learned senior counsel also invited my attention to the grounds taken in the appeal memo, annexures thereto and additional documents which are placed on record and submitted that this Court may not interfere in the impugned judgment and order. 9. Learned senior counsel adopted same arguments, which are advanced by him in respect of A.O. No.126 of 2010. Learned senior counsel further submitted that as the documents stand on record, there is a total failure of consideration by the trial Court. Learned senior counsel also invited my attention to grounds taken in the plaint, annexures thereto, additional documents brought on record and submitted that this appeal from order is devoid of any merits. 10. I have given due consideration to the rival submissions. From perusal of the 13 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. impugned judgment and orders passed by the trial Court I am of the considered opinion that, the trial Court has not given adequate reasons for allowing the applications for temporary injunction. Since, in the facts of this case, I feel it appropriate to restore the applications Exhibit-6 in both the suits to its original file, I refrain myself from making elaborate comments on the merits. Suffice it to say that the trial Court while passing the impugned judgment and order has not considered certain aspects including which party is in possession of the suit property. The direction is given to the revenue authorities but the arguments advanced by the defendants and certain judgments cited on their behalf in support of their contention that the direction to the revenue authorities is beyond the jurisdiction and power of the trial Court, 14 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. has not been gone into by the trial Court. From perusal of the judgment and order I find that such contentions are not dealt with by the trial Court. As stated earlier, from reading impugned judgment and order in its entirety, it is apparent that the reasons assigned by the trial Court are not only cryptic, but certain contentions and certain documents which were brought on record by the parties have not been properly appreciated or looked into by the trial Court. In that view of the matter, in the interest of justice and in the facts of this case, it would be appropriate to restore Exhibit-6 applications in both the suits to its original file. 11. In the result, impugned judgments and orders are quashed and set aside. Applications at Exhibit-6 are restored to its original file. Learned counsel Mr. R. R. Mantri and Mr. S. B. Kakade, appearing for 15 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. the appellants, and the learned senior counsel Mr. P. M. Shah, appearing for the original plaintiffs, have made statement that the parties will maintain status-quo as available on today in respect of the suit property till the decision on application below Exhibit-6 in both the suits, by the trial Court. In that view of the matter, parties are directed to maintain status-quo in respect of the suit properties as available on today till the disposal of the application Exhibit-6 for temporary injunction in both the suits. The trial Court shall decide the said applications within three months from receipt of the order passed by this Court. 12. It is needless to mention that all the contentions are left open to the parties to be agitated before the trial Court. It is clarified that that this Court has not gone 16 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 126 & 135 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. into the merits and it is left open to the trial Court to decide the applications on its own merits, after hearing the parties and after taking into consideration the evidence brought on record. It is further needless to mention that the parties will cooperate to the trial Court and will not seek unnecessary adjournments unless there is extraordinary circumstance. The parties agreed that they will appear before the trial Court on 11th October, 2011. The Appeals from Orders and also Civil Applications stand disposed of on above terms. [S. S. SHINDE, J.] Dated:26/09/2011. ans/126