Gujarat High Court Case Information System
Print
SCA/14659/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14659 of 2011
=========================================================
NISHABEN
UPENDRASINH RAJPUT - Petitioner(s)
Versus
RAJESHBHAI
NAVINBHAI SOLANKI & 1 - Respondent(s)
=========================================================
Appearance
:
MR
DHIRAJ M PATEL for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 03/10/2011
ORAL
ORDER
The
petitioner has filed this petition under Arts. 226 & 227 of the
Constitution of India and challenged the order dated 4/4/2009 passed
by learned Civil Judge at Bardoli in Civil Suit No. 65/2008 and
confirmed by learned Additional District Judge, Surat at Vyara on
25/8/2011 in Misc. Civil Appeal No. 19/2009.
According
to petitioner original plaintiff, she is an owner and occupier of
suit property. As she was in need of finance, in December, 2007,
respondent no. 1 original defendant no. 1 advanced an amount of Rs.
40,000/- to her husband and obtained her signature on typed stamp
paper but she was not aware that the writing was a special Power of
Attorney and on the basis of the same, respondent no. 1 original
defendant no. 1 would execute sale deed in favour of his wife
respondent no. 2 defendant no. 2. On the basis of said forged Power
of Attorney, respondent no. 1 executed sale deed in respect of the
suit property on 7/10/2008 in favour of his wife respondent no. 2
and it was registered with Sub Registrar, Palsana. Therefore,
Special Civil Suit No. 65/2008 was filed in the Court of learned
Principal Civil Judge, Bardoli for declaration that the special
Power of Attorney is forged and to declare that the sale deed dated
7/10/2008 in favour of respondent no. 2 executed by respondent no. 1
is without consideration, null and void and with symbolic possession
and other reliefs. The petitioner also filed Injunction Application
exh 5 and sought interim relief to restrain the respondents from
selling, mortgaging or gifting away the suit property to anyone and
to restrain them from obstructing her actual possession and to
maintain status quo till final disposal of the suit. The respondents
original defendants contested the Injunction Application by filing
reply. After hearing learned advocates for the parties, the Trial
Court dismissed the Injunction Application by order dated 4/4/2009.
Therefore, the petitioner filed Misc. Civil Appeal No. 19/2009 in
the Court of learned Principal District Judge, Vyara. The Appellate
Court after hearing learned advocates for the parties, dismissed the
appeal and confirmed the order passed by the Trial Court. Being
aggrieved by the decision, the petitioner has filed this petition.
I
have heard learned advocate Mr. Patel for the petitioner at length
and in great detail. I have also perused the impugned order.
Learned
advocate Mr. Patel submitted that the sale deed in question was
executed by forging Power of Attorney and the Power of Attorney had
no actual possession of the the property in question. Therefore,
the sale deed executed by him was not a legal document and
possession was not given to the respondents as claimed in the sale
deed. He also submitted that the respondents in the written
statement have admitted that the petitioner broke open the lock and
took illegal possession of the suit property by placing his luggage
in the suit property and panchnama in that regard was also made.
This contention itself indicates that the petitioner was in actual
possession of the suit property. Therefore, the Courts below
committed error in passing the impugned orders. Therefore, this
Court is required to exercise its extra ordinary jurisdiction to set
aside these orders.
Learned
advocate Mr. Patel for the petitioner has relied upon the alleged
admission made in the written statement by the respondents but it
appears from the contentions raised in written statement, copy of
which, is produced by the petitioner with compilation at Annexure
“F”, that the respondents also raised a contention that
on the day of execution of sale deed, actual possession of the suit
property was handed over to them and thereby they were in actual
possession of the suit property. Learned advocate Mr. Patel admitted
that the sale deed was produced at Mark 18/10 in the Trial Court and
there was a recital that the possession of the suit property is
handed over to the purchaser on the date of execution of sale deed.
This clearly indicates that at the time of execution of the sale
deed, possession of the suit property was handed over to the
respondents. Therefore, petitioner could not be in possession
thereof subsequent thereto. It is also admitted fact that except the
Commissioner’s report there is no evidence produced by the
petitioner to show that she was in actual possession of the suit
property on the date of filing of the suit. Learned advocate Mr.
Patel submitted that he had produced Tax Bill and Electricity Bill
in respect of the suit property to show possession of the
petitioner. However, in view of the fact that the sale deed mark
18/10 indicated that the actual possession was handed over to the
purchaser, it is difficult to believe that the petitioner was in
legal possession of the suit property on the date of filing of the
suit.
It
also emerges that according to respondents, the petitioner after
executing sale deed broke open the lock and took possession of the
suit property. It also appears from the prayer 16(c) made in the
suit, copy of which, is produced along with compilation, that the
petitioner has sought relief that possession of the respondents was
symbolic. This clearly indicates that the petitioner was not in
actual possession of the suit property on the date of filing of the
suit. The petitioner has not produced any cogent evidence before
the trial Court to show that she was in legal and actual possession
of the suit property. In view of allegations of the respondents
that the petitioner broke open the lock and took possession it can
not be said that the petitioner made out her prima facie case of
legal possession. Therefore, the petitioner was not in legal
possession of the suit property. Learned advocate Mr. Patel
submitted that the power of Attorney Holder had no authority to sell
the suit property and that he was not in actual possession of the
suit property and hence, he could not have given possession to the
purchaser. In my view, the question whether the Power of Attorney
Holder was in possession or that the power of attorney was forged,
are the questions which can be decided at the time of trial only.
At this juncture, the Court is required to consider prima facie case
about actual possession of the suit property. As observed earlier,
it emerges that the possession of the suit property was handed over
to the respondents at the time of execution of sale deed but
thereafter the petitioner allegedly broke open the lock and entered
on to the suit property. Therefore, possession of the petitioner can
not be said to be a legal possession. While considering grant of
equitable relief, the Court can not protect possession obtained by
illegal method. The equitable jurisdiction can not be exercised in
favour of such litigant who has taken law in his hands. Therefore,
possession of the petitioner can not be protected by the Court.
As
regards Commissioner’s report, it is also settled proposition that
possession can not be decided on the basis of Commissioner’s report.
Therefore, Commissioner’s report do not help the petitioner to
prima facie establish that she was in legal possession of the suit
property.
In
view of the above, the Court belows were justified in refusing the
equitable relief of injunction. I do not find any reason to
exercise extra ordinary jurisdiction of this Court. Therefore, the
petition is required to be dismissed. Accordingly, it is dismissed.
(BANKIM
N. MEHTA, J)
asma
Top