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AO/11220/2008 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 112 of 2008
With
CIVIL
APPLICATION No. 4086 of 2008
In
APPEAL FROM ORDER No. 112 of 2008
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AJAWALIBEN
RUDABHAI & 2 - Appellant(s)
Versus
BHANUBHAI
BHAWANBHAI JANI & 2 - Respondent(s)
=========================================================
Appearance
:
MR
MEHUL S SHAH for
Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 - 3.MR SURESH M
SHAH for Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 - 3.
MR
AJ PATEL, FOR MS RV ACHARYA for Respondent(s) : 1 - 3, 3.2.2,3.2.3
None for Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 05/09/2008
ORAL
ORDER
Heard
learned advocates appearing for the parties.
The
appellants herein have challenged an order dated 12.2.2008 passed by
the Principal Senior Civil Judge, Bhavnagar, by which application
exh.5 in the Civil Suit No. 55/2007 filed by the present appellants
original plaintiffs came to be dismissed and application exh.18
filed by respondent No.3 herein original defendant No.3 came to be
allowed.
The
appellants are original land owners. They had given irrevocable
power of attorney to deal with the suit land in favour of
respondents No. 1 and 2 herein, original defendants No. 1 and 2 by a
deed dated 14.2.1995. They had also entered into an agreement to
sale the said property in favour of the said parties by creating
document on 13.3.1995. They filed a Civil Suit for permanent
injunction and declaration by filing exh.5 application seeking
interim injunction.
Defendants
No. 1 and 2 opposed the suit and contended inter-alia that
irrevocable power of attorney was coupled with full payment of sale
price of land in question. This irrevocable power of attorney was
coupled with consideration. Such power of attorney could not have
been cancelled and acting on the basis of power of attorney, they
have already sold the land in question to defendant No.3.
Defendant
No.3 also opposed the suit and filed application exh.18 seeking
counter injunction against the plaintiffs disturbing his possession
and enjoyment of the land in question.
Learned
Judge by detailed judgement dated 12.2.2008, as already noted,
rejected exh.5 application of the plaintiffs but allowed exh.18
application filed by defendant No.3. In the impugned order, learned
Judge has discussed at length the manner in which the power of
attorney came to be created. Learned Judge has noted that on
13.3.1995, an agreement to sale was also created by the plaintiffs.
It was observed that the plaintiffs had not disclosed fully all
particulars. Learned Judge also came to the conclusion that
irrevocable power of attorney was coupled with creation of interest
and in view of provisions contained in Section 202 of the Contract
Act, same could not have been revoked. Learned Judge therefore, came
to the conclusion that between the plaintiffs and defendants No. 1
and 2 there is not a simple relation of mere principal and agent,
but the plaintiffs are sellers and defendants are purchasers of land
in question. He also came to the conclusion that the defendant No.3
enjoys valid and legal possession of the disputed property since
13.7.2004 which was sold to him on the basis of power of attorney.
It was observed that defendant No.1 had handed over the possession
of suit land to defendant No.3. Learned Judge has also observed that
modus operandi applied by the plaintiffs was to circumvent the
provisions of Urban Land Ceiling Act.
Learned
advocate Shri S.M. Shah however, vehemently submitted that the
learned Judge has not given any reasons to come to the conclusion
that possession of the land in question was handed over by the
plaintiffs to the defendants No. 1 and 2 which in turn could have
been handed over to defendant No.3.
Learned
Judge has in paragraph-31 turned down the contention of the Counsel
for the plaintiffs that they are still in possession of the suit
land. Simultaneously, learned Judge observed that defendant No.3 is
in valid and legal possession of the disputed property since
13.7.2004 handed over to him by defendant No.1. At paragraph-42 of
the order, learned Judge further recorded that defendant No.3 has
become absolute owner of the suit land and as per the findings of
earlier portion of the order, he has valid and legal possession of
the suit land.
It
is true that learned Judge may not have recorded elaborate reasons
to link the possession of defendant No.3 with that of defendants No.
1 and 2, however, only for this purpose, it would not be appropriate
to disturb otherwise valid order, particularly, when I find that in
the document creating irrevocable power of attorney dated 14.2.1995,
it is clearly mentioned that plaintiff while giving irrevocable
power of attorney in favour of defendants No. 1 and 2 with respect
to the land in question, permitted the said defendants to take all
appropriate procedure for the land in question and also authorised
the said attorneys to either convert the land into nonagricultural
land or to continue the land to put in agricultural use. This would
clearly indicate that by virtue of this very same document,
possession was handed over to defendants No. 1 and 2. When the
defendants No. 1 and 2 in turn created a registered sale deed in
favour of respondent No.3 and decided that possession be handed over
to the said defendant, I do not find that the conclusion of the
learned Judge that defendant No.3 is in valid possession thereof
need to be interfered at this stage.
In
the result, I do not find that the learned Judge committed any
error.
Learned
advocate Shri S.M. Shah for the appellants relied on decision of the
Apex Court in case of Daya Ram v. Raghunath & ors.
reported in 2007(8) Scale 552 to contend that order which is not a
reasoned order cannot be allowed to sustain. In the present case,
however, I find that order passed by the learned Judge is not devoid
of reasons.
Under
the circumstances, the appeal is dismissed. Needless to add all the
observations made in this order as well as those made by the learned
Judge in the impugned order are purely prima facie in nature and
will not come in way of either sides in pursuing the pending civil
suit.
Appeal
stands disposed of accordingly.
Civil
Application also stands disposed of.
Further
dealing of land in question by defendant No.3 shall also be subject
to the outcome of the civil suit.
(Akil
Kureshi,J.)
(raghu)
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