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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
T. V. NALAWADE, VIBHA KANKANWADI, JJ.
Yogesh s/o Sudhakar Chavanke - Appellant
Versus
Sitaram Damu Mate & Ors. - Respondents
First Appeal No. 1335, 1355 of 2016
Decided On : 06-12-2018
Innocence of plaintiff - Agricultural land bearing - Irrevocable power of attorney - Fraud - Suit property by illegal means - Defendants No 1 and 2 have filed common written statement at Exhibit 17 and additional written statement after amendment of plaint at Exhibit 37 - They have denied disputed facts in specific words - It has been denied that, by taking disadvantage of innocence of plaintiff, defendant No1 has got executed irrevocable power of attorney - It has been denied that, after plaintiff had issued notice, with help of advocate and without giving information to plaintiff, certain documents have been got executed by obtaining signatures of plaintiff on blank stamp papers - It has been stated that, suit property has been sold by plaintiff and defendant by virtue of sale deed and defendants have been put in possession by virtue of said sale deed - Revenue entries have been made by virtue of sale deed in their favour - It has been stated that, now defendants have become owner of suit property and therefore suit is not maintainable -It has been contended that, defendants had filed Regular Civil Suit against plaintiff with Civil Judge Junior Division, Rahata -Temporary injunction was granted against plaintiff - By way of additional written statement it has been contended that, suit suffers from non-joinder of necessary parties - It is impossible that irrevocable power of attorney could have been cancelled by plaintiff - Silence on part of plaintiff would speak for him and it will show that suit has been filed with ulterior motive –Held, Court therefore, conclude that, plaintiff has proved that, he had right to cancel power of attorney and accordingly he has cancelled it -Sale deed executed by defendant No 1 as power of attorney of plaintiff in favour of himself and defendant No2 is void, illegal and not binding on plaintiff - Further it can be seen that, there was no mention of giving of possession of suit land by plaintiff to defendant No 1 in any other documents - Wordings tried to be used for having possession in document Exhibit 118 is not properly worded and said document is not a registered document - Therefore, recital about possession in said document cannot be considered at all - But it appears that, defendants No1 and 2 have taken possession of suit property by illegal means, and therefore, plaintiff was entitled to get back possession - Therefore, points are answered accordingly – Court does not find any illegality or error committed by learned trial Court in decreeing suit - Both appeals are devoid of merits, hence dismissed with costs - Decree is drawn accordingly in both matters – Appeals are dismissed
VIBHA KANKANWADI, J.
1. Since both the appeals are arising out of same Judgment and decree, they are proposed to be disposed of by this common Judgment. Both the appellants are the original defendants. They want to challenge the Judgment and decree passed in Special Civil Suit No. 27 of 2012 by Civil Judge, Senior Division, Kopargaon on 17-02-2016 whereby the suit for declaration and perpetual injunction came to be decreed against them. Parties are referred by their nomenclature before the trial Court.
2. Plaintiff has come with a case that, the property i.e. the agricultural land bearing Gut No. 165/1, admeasuring 1 Hectare 86 Ares plus barren land admeasuring 0.29 Are situated at village Nimgaon Korhale Tq. Rahata Dist. Ahmednagar is his ancestral land. Out of the said land, land admeasuring 1 Hectare 12 Ares plus Potkharaba 0 Hectare 07 Are, in all 1 Hectare 19 Ares is the suit property. Plaintiff has three adult married sons and wife in the family. They all are cultivating the said land. Plaintiff and defendant No.1 are distant relatives. It is stated that, taking disadvantage of the innocent behaviour of the plaintiff, the defendant has got executed an irrevocable power of attorney in his favour in respect of the suit property on 29-02-2008 and it was registered with the Sub- Registrar. No information was given by the defendant No.1 to the plaintiff at the time of registration of the power of attorney. Plaintiff realised the preparation of such bogus and fabricated power of attorney by defendant No.1, and therefore, by issuing notice dated 05-11-2008 he canceled the said power of attorney. It was specifically informed that, he shall not do any act on the basis of the said power of attorney which may be in the nature of execution of a document. The said notice was refused by defendant No.1. Plaintiff had also given public notice regarding cancellation of the power of attorney in daily “Deshdoot” Nashik edition on 15-11-2008 and daily “Sarvamat” Ahmednagar edition on 22-11-2008. In view of the said notice the said power of attorney is cancelled. When defendant No.1 realised the said fact, there was dispute between him and plaintiff. There were attempts by the relatives to have compromise between them. Defendant No.1 was giving threats to the plaintiff stating that he will not allow the plaintiff to cultivate the land and he would sell out the property without his consent. After receiving frequent threats, the plaintiff put a proposal for compromise through Advocate Mr. S. T. Kote from Rahata to have compromise with defendant No.1 on 07-10-2011. However said lawyer joined hands with defendant No.1 and took disadvantage of the innocence of the plaintiff. Said lawyer gave 11 stamp papers valuing Rs.100/- each and promised that, he would arrange for a compromise between him and defendant No.1, and for that purpose the plaintiff should sign on blank stamp papers at the end of the document. Believing him and in hope that the dispute would come to an end, the plaintiff signed on those documents as stated by the lawyer and gave it to him. The said stamp papers have been used by the concerned advocate and the defendant No.1 to prepare an affidavit of the plaintiff dated 07- 10-2011, another document stating that, the plaintiff is taking back the notice which he had given for cancellation of the power of attorney. Defendant No.1 has thereby cheated the plaintiff. Thereafter the defendant No.1 taking disadvantage of those documents, executed sale deed vide registered sale deed No. 1016- 12 in favour of defendant No.2. The said sale deed would show that defendant No.1's name is shown as 'the person purchasing suit property' and 'the person who is selling it' is also the defendant No.1. Defendant No.1 has not paid any consideration amount to him. Defendant No.1 had not given any information about the sale to the plaintiff. T
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