Shanti Budhiya Vesta Patel & Ors vs Nirmala Jayprakash Tiwari & Ors

3. In order to properly appreciate the precise nature and scope of the controversy arising in the present appeals, it would be appropriate as well as expedient to set out a brief statement of pertinent facts. The original appellant, Budhiya Vesta Patel, was the predecessor-in-interest of the present appellants. Budhiya Vesta Patel was appointed as a watchman by one R.K. Tiwari, who was cultivating grass on the suit property since 1954-55, to take care of the suit property and for this a Kachcha shed on the suit property was provided to him. In due course of time, Budhiya Vesta Patel extended the shed to construct a chawl known as Budhiya Patel Chawl consisting of 38 rooms, which were let-out by him.

4. After the death of the real owner of the suit property, Mr. Anant Mahadeo Tambe, husband of Leela Anant Tambe, respondent no. 7 herein, the suit property stood recorded in the name of respondent no. 7. By means of a consent decree passed in Suit No. 1230 of 1992 between respondent no. 7 and M/s. 2 Hitesh Enterprises, respondent no. 8 herein, the latter became the owner of the suit property.

6. Against this, a counter-claim being Counter Claim No. 11 of 2002 seeking eviction of Budhiya Vesta Patel and his tenants from the suit property was filed by respondent no. 7 and respondent no. 8. The aforesaid suits were contested and on the basis of the pleadings of the parties, issues were framed and evidence was led.

7. The trial Court by its judgment and order dated 10.02.2003 and 11.02.2003 dismissed the suit filed by Budhiya Vesta Patel and allowed the counter claim filed by respondent Nos. 7 and 8. The trial Court negatived Budhiya Vesta Patel's 3 claim of ownership of the suit property by adverse possession since his initial possession of the suit property was a permissive possession.

8. Aggrieved by the said judgment and order, several appeals came to be filed before the High Court of Bombay. Budhiya Vesta Patel had filed two appeals, being F.A. No. 1388 of 2003 and F.A. No. 1389 of 2003; the former against the dismissal of the suit filed by him and the latter against the decree passed against him in the counter claim. The third appeal being, F.A. No. 1390 of 2003, was preferred by one Yusuf Vali Mohd. Bilikhiya (respondent no. 9 herein), who was the Power of Attorney holder of Budhiya Vesta Patel. Respondent Nos. 1 to 6 also filed an appeal against the judgment and order of the trial Court which was registered as F.A. No. 1523 of 2003. However, subsequently, the same was withdrawn.

9. During the pendency of the aforesaid appeals, Budhiya Vesta Patel died on 05.12.2004. On 07.01.2005, each of the present appellants executed an irrevocable Power of Attorney in favour of respondent no. 9. On the basis of the said Powers of 4 Attorney, respondent no. 9 filed three separate applications being Civil Application Nos. 3180 of 2005, 3181 of 2005 and 992 of 2005 in the aforesaid three appeals wherein he prayed that the legal representatives of Budhiya Vesta Patel, i.e., the appellants be brought on record in all the three appeals in place of Budhiya Vesta Patel.

10. On 26.04.2006, the appellants executed a Power of Attorney in favour of one Narender M. Patel. It is alleged by the present appellants that respondent no. 9 colluded with respondent no. 8 and, therefore, respondent no. 9 forced and coerced them to enter into a compromise with respondent nos. 7 and 8, which was strongly objected to by the appellants. On this, the appellants further allege that they were threatened with dire consequences by the aforesaid respondents. Consequently, the appellants got filed three complaints dated 01.05.2006, 17.05.2006 and 23.05.2006 with the police against respondent nos. 8 and 9. However, it is alleged that despite this, respondent no. 9 for himself and for and on behalf of the appellants as their Power of Attorney holder entered into consent terms with respondent nos. 7 and 8 in F.A. No. 1389 of 5 2003 and thereby submitted to the decree of eviction. The High Court, by its order dated 13.06.2006, allowed the aforesaid applications filed by respondent no. 9 and also disposed of the said appeals after taking on record the consent terms entered into between respondent nos. 7 and 8 on one hand and respondent no. 9 on the other. Subsequent to filing of the consent terms, the names of the tenants were deleted from the array of the parties. No appeal was, however, filed by any tenant.

12. Before we proceed to give an account of the submissions made by the counsel appearing for the parties, we wish to make note of a development that took place after filing of this SLP by 6 the appellants. After this SLP was filed, respondent no. 9 filed a civil application before the High Court praying for setting aside the consent decree dated 13.06.2006 on the ground that respondent no. 8 had failed to perform his obligation under the consent terms, i.e., payment of Rs 1 crore and 15 lakhs to him. The High Court, by an order dated 06.07.2009, dismissed the said application.

17. On the other hand, Mr. Ashok H. Desai, Mr. Dushyant Dave and Mr. Jaydeep Gupta, learned senior counsel appearing for the respondent Nos. 7 and 8 as also respondent No. 9 strongly refuted the aforesaid submissions while bringing to the notice of the Court that, in fact, Budhiya Vesta Patel had himself entered into a Development Agreement dated 12.01.1994 with respondent no. 9 whereby the former transferred his rights, title and interest in the suit property to the latter for a consideration of Rs. 2,00,000/- which was fully paid by respondent no. 9 to the Budhiya Vesta Patel and accepted by him prior to the execution of the said agreement. It 9 was further submitted that the irrevocable Powers of Attorney which were executed in favour of respondent no. 9 by Budhiya Vesta Patel and, upon his death, by the appellants made the acts, which were carried out by respondent no. 9 in the best interest of the appellants, binding on the appellants and that there existed no valid ground for setting aside the compromise arrived at between the parties and the consent decree passed by the High Court.

21. Further, a Deed of Confirmation dated 15.12.1995 duly registered on the same date was executed between Budhiya Vesta Patel and respondent no. 9 by which Budhiya Vesta Patel confirmed that the aforesaid Development Agreement was subsisting, valid and in full force and would be binding on the heirs, executors, administrators and assigns of the parties to the said Development Agreement. This was followed by a Declaration dated 23.08.2001 by Budhiya Vesta Patel wherein he acknowledged the rights, title and interest of the respondent no. 9 over the suit property, the receipt of consideration of Rs 2,00,000/- and extended the period of the said Power of Attorney indefinitely and undertook to ratify and confirm the acts done by respondent no. 9.

36. The appellants also alleged that they had revoked the Powers of Attorney executed by them in favour of the respondent no. 9 by filing complaints with the police. We are of the considered opinion that this contention of the appellants is devoid of merit. Although there is no denying the fact that three police complaints had been filed on three different dates with the police against the alleged harassment and threats by 21 respondent nos. 8 and 9, it is difficult to understand how the Powers of Attorney executed by the appellants or their predecessor-in-interest stood revoked. The record of the case reveals that each of the complaints was filed by a separate person - the first complaint was filed by the appellants themselves, the second by an Advocate and the third by one Narendra M. Patel, who is himself a builder. It is significant to note that all these complaints came to be filed when said Narender M. Patel came into the picture. Further, it is important to take note of the fact that all the Powers of Attorney executed in favour of respondent no. 9 as also all the deeds and documents entered into between the predecessor-in-interest of the appellants and respondent no. 9 were duly registered with the office of the Sub-Registrar. Neither any document nor any of the Powers of Attorney was ever got cancelled by the appellants.

38. The appellants, thus, had ample time and opportunity with them to bring the said allegations to the notice and knowledge of the High Court at any time between 26.04.2006 and 13.06.2006. The appellants had considerable amount of time available with them. As noted earlier, with regard to the complaints filed, the appellants did not take any follow up action to bring them their logical end.

(emphasis supplied)

42. In view of the foregoing discussion, we are of the considered view that entering into the compromise as also filing of the same in the High court of Bombay by respondent no. 9 on behalf of the appellants was without any fraud and well within the scope of his authority. Accordingly, we find no merit in the present appeals and the same are hereby dismissed. There will be no order as to costs.

......J. [R.M. Lodha] New Delhi April 21, 2010.