1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3261 OF 2009 Papanna Sayanna Controllu & Anr. ...Petitioners vs. Bapusaheb Laxman Satav ...Respondent Mr.S.V.Sadavarte for the petitioners Mr.Avinash Avhad for respondent CORAM :A.S.OKA,J. DATE : AUGUST 28, 2009 P.C. 1 Heard the learned counsel for the petitioners. The petitioners are the original defendants and the respondent is the original plaintiff. The first petitioner is the father of the second petitioner. In the suit filed by the respondent it is asserted that he is the owner of the suit property. It is alleged that the second petitioner was doing the business of money lending. In March 2006, the respondent-plaintiff borrowed a sum of Rs.1,50,000/- from the second petitioner. It is alleged that the second petitioner insisted on execution of mortgage of the suit property. It is alleged in the plaint that on 6 th March 2006, the respondent remained present before the Sub Registrar and signed the documents which were already kept ready by the second petitioner. It is stated that though in June 2007, the respondent offered to repay the amount, the same was not accepted. It is stated that in July 2007, 2 the respondent realised that by deceiving him the second petitioner got executed a registered power of attorney on 6 th March 2006 and on the basis of the said power of attorney, the second petitioner got executed the sale deed in respect of the suit property in favour of the first petitioner. The challenge in the suit is to the power of attorney dated 6 th march 2006 and sale deed dated 7 th October 2006. An application for temporary injunction was made by the respondents seeking temporary injunction for protection of his possession. In the reply filed by the respondents they relied upon the agreement for sale dated 6 th march 2006 executed by the respondent in favour of the second petitioner by which respondent agreed to sell the property to the second petitioner for consideration of Rs.1,50,000/-. It is contended that under the said agreement the entire amount of Rs.1,50,000/- was paid to the respondent by two separate cheques. It is contended that the second petitioner was placed in possession on the basis of the said agreement and since then the respondent is not in possession. The trial court partly allowed the appeal by granting temporary injunction restraining the petitioners from creating third party interests. The trial court found that the respondent has not established his possession. The Appellate Court in an appeal preferred by the respondent allowed the appeal and granted temporary injunction against the petitioners by 3 restraining them from obstructing enjoyment of the respondent of the suit property and restraining them from creating third party interests. 2 The learned counsel for the petitioner submitted that the agreement for sale dated 6 th march 2006 itself records that the respondent has placed the second petitioner in possession of the suit property on accepting the full consideration of Rs.1,50,000/-. He pointed out that the said amount was paid by the cheques. Though the bank statement was not produced before the courts below, the learned counsel for the petitioner states that the cheques referred in the agreement were encashed. He submitted that even the power of attorney which is a registered document shows that the respondent parted with possession in favour of the second petitioner. He submitted that under the sale deed executed subsequently by the second petitioner in his capacity as the constituted attorney of the respondent, he placed his father i.e the first petitioner in possession. He, therefore, submitted that the finding recorded by the District Court against the petitioners on the issue of possession is perverse. The learned counsel for the respondent supported the impugned Judgment and order. 3 I have carefully considered the submissions. 4 Perusal of the impugned order shows that on the basis of the revenue record, the bills of sale of sugarcane crop and photographs filed by the respondent-plaintiff, the learned District Judge recorded a finding that the respondent-plaintiff continues to be in possession. 7/12 extracts continue to show the possession of the respondent. The learned District Judge found that the present petitioners did not produce any evidence of their possession. The learned Judge observed that the petitioner has not filed affidavits of adjoining land holders. 4 It must be stated here that the agreement for sale dated 6 th March 2006 relied upon by the petitioners is not a registered document. It is purportedly executed on a stamp paper purchased in December 2005. The stamp paper is not purchased either in the name of the purchaser or the vendor. The said Agreement records that the respondent has put the second petitioner in possession of the suit property on the date of the execution of the said agreement. The power of attorney executed on 6 th March 2006 by the respondent in favour of the second petitioner does not refer to any such agreement of sale allegedly executed by the respondent. The sale deed dated 7 th October 2006 has been executed by the second petitioner in his capacity as the constituted attorney of the respondent. The said sale deed allegedly 5 executed in October 2006 does not refer to the agreement allegedly executed on 6 th march 2006. If the said agreement was genuine, on the date of execution of the sale deed i.e. on 7 th October 2006, the respondent could not have been in possession of the suit property. Nevertheless the sale deed contains a recital that on the date of execution of the sale deed the first petitioner has been placed in possession of the suit property by the vendor i.e the respondent. Moreover, the sale deed does not refer to the alleged agreement dated 6 th March 2006. Apart from this, the sale deed discloses that the total price agreed was Rs.1,80,000/-. It must be stated here that the case of the respondent is that a sum of Rs. 1,50,000/- was borrowed by the second petitioner. 5 Considering all these aspects which are reflected from the documents, the case of the petitioners regarding their possession becomes doubtful. In this context, the Appellate Court has referred to the failure of the petitioners to produce any other evidence to establish their possession. Prima facie, I find that the respondent plaintiff has established his possession. It is not possible to find fault with the discretionary order passed by the Appellate Court based on the appreciation of documentary evidence on record. Hence, there is no merit in the petition. Petition is rejected. 6 6 It is made clear that the observations made in this order are for limited purpose of examining the legality and validity of order grantiang temporary injunction and the suit will be decided without being influenced by the said observations. 7 The learned counsel for the petitioner prays for continuation of ad-interim relief granted on ad-interim relief granted on 2nd April 2009. The learned counsel for the respondent opposes the said prayer. Ad-interim relief granted on 2 nd April 2009 will continue to operate for a period of 8 weeks from today. JUDGE