Allowed

Anjanabai Bhaskar Bhole and Others v. Tulshiram Yadav Patil and Another

Bombay HC18 Oct 2013AO/52/2013

Case brief

AI extract

What is this about?

High Court allowed an appeal against a trial court's rejection of an injunction application regarding a disputed land sale. The High Court held that the uncorroborated cash payments and nature of immovable property constituted irreparable loss, granting a temporary injunction.

What did the court decide?

Temporary injunction till the disposal of the suit is granted in terms of prayer clause (B) of Civil Application no. 6360 of 2013.

Anjanabai Bhaskar Bhole and Others Vs Tulshiram Yadav… — Property and Title | Bombay HC (2013)

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(1) AO-52-2013

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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APPEAL FROM ORDER NO. 52 OF 2013

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AND

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CIVIL APPLICATION NO. 6360 OF 2013

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1. Anjanabai Bhaskar Bhole,
 Age : 60 years, Occu: Agri.,
 R/o At Post Asoda, Tal. &
 Dist. Jalgaon

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2. Kiran Bhaskar Bhole,
 Age : 41 years, Occu.: Nil,
 R/o As above

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3. Bharti W/o Pradip Bhole,
 Age : 38 years, Occu.: Household,
 R/o MJ College Chowk, Jalgaon,
 Tal. & Dist. Jalgaon

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 Appellants

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(Orig. Plaintiffs)

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VERSUS

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1. Shri Tulshiram Yadav Patil,
 Age : 62 years, Occu.: Agriculture,
 "Saikrupa", 10, Suyog Colony,
 Jilha Peth, Jalgaon, Tal. &
 Dist. Jalgaon

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2. Padmakar Shahaji Patil,
 Age : 51 years, Occu.: Business,
 15/1 Gurukul Colony,
 Jalgaon, Tal. & Dist. Jalgaon Respondents
 (Orig. Defendants)

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Mr. A.P. Bhandari, Advocate for the Appellants/Applicants.
Mr. V.J. Dixit, Sr. Advocate i/b. Mrs. M.L. Sangeet, Advocate
for respondent no.1.

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Mr. S.B. Yawalkar, Advocate for respondent no.2.

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CORAM : M. T. JOSHI, J.
DATED : 18/10/2013

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ORAL ORDER:

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1.Admit. With consent of both the sides,

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heard finally.

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(2) AO-52-2013

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2.Aggrieved by the rejection of the

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application for grant of temporary injunction
against the present respondents, not to make any
alienation and for compliance of conditions in N.A.
order and other ancillary reliefs, the original
plaintiffs have preferred the present Appeal from
Order.

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3.The appellants claim ownership over survey
no.30 admeasuring 1 hector 77 R of village Khedi
(Budruk), Tal. and Dist. Jalgaon. According to them
they had got the said land in succession. The said
land was Kulkarni Inam land. Necessary permission
for alienation of the same was obtained from the
authorities. Thereafter, they wanted to convert the
said land into the non-agricultural user. However,
the appellants were ignorant about the procedure for

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seeking N.A. permission from the revenue
authorities. In the circumstances, defendant no.1
i.e. present respondent no.1 promised them to do the
needful. He however put a condition that the said
power of attorney should be executed in his favour.

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(3) AO-52-2013

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In the circumstances, such power of attorney was

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executed, however, no specific authority to sell or
deal with the plots was granted. However, by
deceiving them, the power of attorney was obtained
on 22/11/2001 wherein the authority about the
alienation etc. was also got inserted. Ultimately,
the permission from the concerned authority was
obtained.

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Ultimately, when a dispute arose between

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the appellants and defendant no.1, upon making
enquiry, it was found that without complying with

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the order passed by the revenue authorities at the
time of grant of N.A. permission on 24/11/2001, the
respondent no.1 has executed a sale deed in favour
of respondent no.2. When the certified copy of the
sale deed was obtained it was found that false
recitals regarding the payment of consideration were
made. In fact, the market value of the plots in
question is Rs.1,82,25,175/-. The sale deed however

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shows that the consideration as only Rs.35,00,000/-.

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Even false recitals regarding the receipt of the
earnest amount are made and by creation of such

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(4) AO-52-2013

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documents, valuable right of the appellants in the

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suit property are sought to be taken away. In the
circumstances, the suit as well as the application
came to be filed.

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4.Respondent no.1 came with a case that in
fact he has also worked as a general power of
attorney holder in the proceedings of permission to
alienate the inam land. For that purpose, for
twelve years, he has taken efforts. Ultimately, he
made efforts for converting the land to the non-
agricultural user. He himself deposited the
betterment charges etc. During the period of twelve
years, the appellants did not raise any objection.

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In fact, the suit property was not in physical
possession of the appellants. Under the registered
power of attorney, he was empowered with all the
rights of the appellants to sell the land or plot

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and accordingly he has for consideration sold the
plots to the defendant no.2. Though, the valuation
is shown by the Government of the suit property as

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Rs.1,82,25,175/-, the same valuation is as on the
date of the execution of the sale deed. However,

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(5) AO-52-2013

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the agreement was entered into in the year 1999.
Principally for these reasons, it was submitted that
the application be dismissed.

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5.Respondent no.2 i.e. defendant no.2
submitted that he has made all the bonafide enquiry
regarding the title, seen the registered power of
attorney and had entered into the contract with
appellants themselves to purchase the suit plot in
the year 1999 by making payment of Rs.11,00,000/- in
the year 1999. The balance consideration of Rs.
24,00,000/- was paid by him to respondent no.1 on

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the date of execution of sale deed. For that
purpose, he was required to raise loan and in the
circumstances, he wanted that the application be
dismissed. As regards the agreement of sale stated
to have been executed in the year 1999, he submitted
that the same is lost.

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6.Before the learned Civil Judge Senior

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Division, some documents regarding the payment made
by the defendant no.1 towards the betterment charges

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necessary for seeking N.A. permission were filed.
From the side of the defendant no.2 certain bank

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(6) AO-52-2013

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entries were relied in to show that certain amount
was raised.

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7.The learned Civil Judge Senior Division
held that the power of attorney which is registered

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long back show that the respondent no.1 was
authorised to sell the suit property. Further he

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has incurred sizable expenditure for converting the
user of the land. Power of attorney provides that
till the entire suit property is disposed of the
said power of attorney will be in existence. In the

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present suit however no relief of cancellation of
the power of attorney is sought. Further according
to learned trial court, though the appellants are or

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were the owners of the suit property, whether they
are adequately compensated or not in the said
transaction will be decided on merit and therefore
the appellants would not suffer irreparable loss if
preventive injunction order is not passed. Further

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the provisions of section 52 of the Transfer of Property Act i.e. of " lis pendens " was relied in by the Court.

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(7) AO-52-2013

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8.Mr. Bhandari, learned counsel for the

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appellants submits that presently he would not be
agitating about the genuineness of the recitals in
the power of attorney. It is however clear that the

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said power of attorney was executed in the year
2001, whereas the sale deed recites to have been
executed by respondent dated 22/11/2001 would show
that the agreement of sale was executed in the year

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1999. The sale deed further recites that an amount
of Rs.8,00,000/- was paid on 21/8/1999. Further,

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Rs.3,00,000/- were paid on 21/11/1999 and balance

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amount of Rs.24,00,000/- was paid at house on the
execution of the sale deed. All the payments are

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shown to have been made in cash and two of the
payments are shown to have been made even before the

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execution of the power of attorney. He further

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points towards the admitted fact that the present

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market value of the plot is Rs.1,82,25,175/-.

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It was further submitted that conveniently

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respondent no.2 submits that the agreement of sale
entered in 1999 is lost and in such circumstances he

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submitted that as the appellants would suffer
irreparable loss the temporary injunction be

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(8) AO-52-2013

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granted, as prayed for.

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9.Mr. Dixit, learned Senior Counsel i/b. Mrs.
M.L. Sangeet for the respondent no.1 on the other
hand submits that the evidence on record would show
that the respondent no.1 has taken every effort and
invested amount for helping the appellants in the
matter of seeking permission to alienate the inam
land and also for seeking of conversion of land for
N.A. purpose. Power of attorney clearly authorised
him to dispose of the land. Further no relief of
cancellation of the power of attorney is sought in
the present suit. Execution of the power of attorney
is not denied. In the circumstances, he submits

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that when the trial Court on the basis of the material before it made certain prima facie observations and even found that the principle of lis pendens may be applicable, there is no need to interfere in the order.

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10.Mr. Yawalkar, learned counsel for

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respondent no.2 submits that on the basis of the
registered general power of attorney, the respondent
no.2 has entered into the transaction with the

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(9) AO-52-2013

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respondent no.1. He also submits that the appellants

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have not sought any decree for cancellation of the
power of attorney. The documents filed on record
would show that some part of the consideration was
raised by the respondent no.2 by raising certain
loan. During pendency of the present appeal, the
appellants have even registered a notice as per the
provisions of section 52 of the Transfer of Property
Act. He further submits that the attempts to get
the land converted to non-agricultural user by
dividing into various plots would show that the
appellants intended to sell those immovable
property. In the circumstances, it cannot be said
that the appellants cannot be compensated in terms
of money. Resultantly, he submits that if the
appellants succeed on merit of the suit, they can
very well be compensated in terms of money by the
respondent no.1 in case it is proved that he has
deceived the appellants, however, no temporary
injunction needs to be granted.

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11.Having given considered thought to the
material on record and having heard both the sides,

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(10) AO-52-2013

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in my view, the learned trial Court ought to have
granted temporary injunction as sought for, for the
reasons to follow:-

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REASONS

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12.The evidence on record would show that the

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power of attorney was executed by the appellants on
22/11/2001. Presently while dealing with the case

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from the angle of finding a prima facie case, there
is no need to go into the objections of the
appellants that certain recitals in the power of
attorney were inserted without their knowledge.
However, the fact is clear that while the power of
attorney is executed in the year 2001, the sale deed

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executed between the respondents shows that

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respondent no.1 i.e. the power of attorney holder
had himself (meein vernacular) received entire

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amount of Rs.35 Lakh. The details given would show
that Rs.8 Lakhs were paid on 21/8/1999 and Rs.3
Lakhs on 21/11/1999 both in cash. The power of
attorney is executed in the year 2001. Respondent
no.2 submits that the said agreement of sale is
lost. However, there is no corroborative evidence

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(11) AO-52-2013

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to show that this substantive amount of Rs.

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11,00,000/- was parted by him in the year 1999.
Further, the recitals in the sale deed also shows
that amount of Rs.24,00,000/- was paid in cash on
the date of execution of the sale deed and that too
not before the Sub-Registrar but privately at the
house of the parties.

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It should further be noted that all the

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parties to the present lis are resident of Jalgaon.
Yet it is not the case of the respondent no.2 that
he at any time contacted the real owner of the
property i.e. the appellants much less taking their
consent as a prudent person who would be departing a
substantial amount for execution of sale-deed by
their power of attorney. The corroborative evidence
regarding the raising of the loan does not indicate
the substantive amount involved in the transaction.

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It is to be noted that according to the sale deed,

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Rs.24,00,000/- were paid at the time of execution of

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the sale deed and further necessary stamp fees of

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Rs.10,93,560/- was also paid. Thus, according to
respondent no.2, he has parted an amount of

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(12) AO-52-2013

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Rs.34,93,560/- on the date of execution of the sale

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deed. It is not at all corroborated by any
documentary evidence which in normal course would
have been there.

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13.The investment of respondent no.1 in the
nature of paying betterment charges or making
deposits vide certain challan for getting the land
converted to non-agricultural user comparatively is

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very negligible than the consideration that is shown
in the sale deed much less the current market value.
As regards the question of causing no irreparable
loss as the appellants intended to sell the
property, it should be noted that the property in
question is immovable property. When and in what
manner the appellants intended to dispose of the

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same will also require consideration. The loss of
immovable property would naturally be irreparable
loss and in that view of the matter, the following
order:-

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14.The Appeal from Order is hereby allowed
without any order as to costs. The order of the
learned Civil Judge Senior Division is hereby set

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(13) AO-52-2013

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aside and instead, temporary injunction till the

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disposal of the suit is hereby granted in terms of
prayer clause (B) of Civil Application no. 6360 of
2013.

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15.Naturally, the observations made above are

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based on the prima facie consideration of the
material and would not influence the trial Court at
the time of decision on merit.

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16.The Appeal from Order and Civil Application

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no.6360 of 2013 stand disposed of accordingly.

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Sd/-

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 [M. T. JOSHI, J.]

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arp/

Anjanabai Bhaskar Bhole and Others v. Tulshiram Yadav Patil and Another

Case brief

What is this about?

What did the court decide?

Anjanabai Bhaskar Bhole and Others v. Tulshiram Yadav Patil and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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