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2018 Supreme(All) 1042

ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL AND SHASHI KANT, JJ.
Dr. ASHOK MISHRA AND OTHERS ....Appellants
Versus
RAM NIWAS AND OTHERS ....Respondents
(First Appeal From Order No. 466 of 2017, decided on 15th February, 2018)

Advocates:
Counsel :
Anoop Trivedi for the Appellants; Archit Mehrotra, Manish Goyal and Shivam Yadav for the Respondents.

Headnote:(A) Code of Civil Procedure, 1908 – Order XXXIX, Rules 1 and 2 – Lease deed – Cancellation of – Interim injunction – Lease-deed executed in name of Power of Attorney Holders – Execution of power of attorney doubtful – Thus there is no prima facie case for interim injunction – Further it is also not clear that for execution of sale-deed who was paid consideration and there are pleadings showing that fraud has been played with respondents and hence lease-deed cancelled – Neither any prima facie case nor balance of convenience nor irreparable loss shown – Interim injunction cannot be granted. [Paras 38, 39 and 40]

       (B) Powers of Attorney Act, 1882 – Sections 1(a), 2 – Power of attorney – Nature – Donor of Power of Attorney authorises an agent to execute an instrument, acting on his behalf, which will have effect of a transaction in respect of an immovable property – Power of Attorney does not by itself constitute a creation, declaration, assignment, limitation or extinguishment of a right, title or interest to or in any immovable property. [Para 25]

       (C) Registration Act, 1908 – Sections 17(1)(b), 33 – Powers of Attorney Act, 1882 – Sections 1(a), 2 – Power of attorney – Registration – Execution of a deed of Power of Attorney is valid in law and subject to provisions of Act is not compulsorily registerable – However in instant case all persons are residents of Gautam Buddha Nagar (U.P.) – Power of attorney registered in State of Chhattisgarh – It did not satisfy requirements of Section 33(1)(a) – Registration of document cannot be held genuine. [Paras 27 and 38]

       Result; Appeal Dismissed.

JUDGMENT

By the Court.—This is a plaintiff’s First Appeal From Order under Order 43 Rule 1(r) C.P.C. has arisen from judgment and decree, dated 6.12.2016 and 7.12.2016, respectively, passed by Sri Arun Kumar Rai, Civil Judge (Senior Division) Gautam Budha Nagar on application 6-C rejecting ad-interim injunction application of plaintiffs-appellants (hereinafter referred to as “appellants”) in Original Suit No. 33 of 2015 (Dr. Ashok and others v. Ram Niwas and others).

2. Heard Sri Anoop Trivedi, learned counsel for appellants, Sri Promod Jain, Advocate, assisted by Sri Archit Mehrotra, learned counsel for respondents and perused the record.

3. The appellants instituted Original Suit No. 33 of 2015 against defendants-respondents (hereinafter referred to as “respondents”) vide plaint dated 12.1.2015. Plaint case set up by appellants is that plot No. S.D./A-1, area 338.25 Sq.mts. situated in Sector 45 NOIDA, Village Sadarpur, Pargana & Tehsil Dadri, District Gautam Budha Nagar has a residential building constructed over it, which was raised by appellants and they are owner in possession over the land and construction thereon. Sale-deed in respect of aforesaid land was executed in favour of appellants on 13.10.2011 and since then they are in possession over disputed property.

4. The land of respondents 1 to 8 was acquired by Government. On 16.3.2011 defendants 9 and 10 got a Power of Attorney executed in their favour from defendants 1 to 8. Thereafter registered lease-deed dated 27.9.2011 was executed by NOIDA in favour of respondents 1 to 8, through respondents 9 and 10. The power of attorney holders i.e. respondents 9 and 10, on the basis of lease deed dated 27.9.2011 and Power of Attorney dated 16.3.2011, executed sale-deed dated 13.10.2011 of disputed property in favour of appellants and they are in possession over said property since then. At the time of purchase and transfer of possession and permission to raise construction from NOIDA, none of the respondents ever raised any objection. Even no objection has been raised by respondents 1 to 8 at the time of raising construction.

5. In a collusive manner, respondents 1 to 8 filed Original Suit No. 1303 of 2011 in the Court of Civil Judge (Senior Division), Gautam Budha Nagar, challenging Power of Attorney dated 16.3.2011 and lease deed dated 27.9.2011. Subsequently, said respondents got the suit dismissed after filing an application and affidavit that Power of Attorney dated 16.3.2011 and lease deed dated 27.9.2011 are valid documents. Earlier respondents 1 to 8 have got an agreement dated 8.3.2007 executed and registered in favour of Manju Chauhan and Pawan Kumar. This document was registered at Serial No. 1110 in the office of Sub-Registrar, NOIDA. Respondents 1 to 8 have also filed Original Suit No. 758 of 2013 in which respondents 9 and 10 are defendants and have filed their written statement stating that Power of Attorney dated 16.3.2011 and lease-deed dated 27.9.2011 are valid documents and sale-deed dated 13.10.2011 was executed with the consent of respondents 1 to 8. Now, with a dishonest intention, respondents 1 to 8 are claiming that Power of Attorney and sale-deed as well as construction and possession over property in dispute of appellants are illegal. They have also filed an application in NOIDA claiming that transfer of plot in dispute is illegal. It appears, by concealment of correct facts, respondents 1 to 8 are attempting to usurp disputed land illegally. They have also concealed factum of civil suits pending and decided. Respondents 1 to 8 are repeatedly declaring that Power of Attorney dated 16.3.2011 is illegal and lease-deed dated 27.3.2011 is void though this issue had already been settled holding the said documents valid, in Original Suit No. 1303 of 2011. NOIDA, a statutory body constituted under Section 3 of the Uttar Pradesh Industrial Area Development Act, 1976 (U.P. Act No. 6 of 1976) has no authority to declare any document valid or invalid. In this



















































































































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