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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

WRIT PETITION NO. 1567 OF 2020

Istari s/o Gondba Shindhmeshram

vs.

Kacharu s/o Sakharam Kamble

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Office Notes, Office Memorandum of Coram, Court'

s or Judge'

s orders

appearances, Court'

s orders of directions

and Registrar'

s orders

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Mr. D. V. Mahajan, Advocate for petitioner.

CORAM : MANISH PITALE J.

DATED : 23/06/2021

Hearing was conducted through Video

Conferencing and the learned counsel agreed that the

audio and visual quality was proper.

2.

Heard learned counsel for the petitioner.

3.

By this writ petition, the petitioner (original

defendant) has challenged order passed by the Court of

District Judge – 6, Nagpur (appellate Court) dated

04/02/2020, whereby appeal filed by the respondent

(original plaintiff) has been allowed and temporary

injunction as prayed under application at Exh.5 has been

granted in favour of the respondent.

4.

In the present case, the respondent has filed

a suit for declaration and permanent injunction against

the petitioner on the basis of a registered Sale Deed. The

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respondent claims that he is in possession of the suit

property.

5.

The contention of the petitioner is that the

said transaction on the basis of a registered power of

attorney and registered Sale Deed claimed by the

respondent was actually a money lending transaction

and that the petitioner has continued in possession of the

suit property. On this basis, the petitioner resisted the

application for grant of temporary injunction.

6.

The parties filed affidavits in support of their

respective claims of being in possession of the suit

property. The application for temporary injunction in the

first instance was rejected by the Court of Civil Judge

Junior Division, Kuhi (trial Court). Aggrieved by the

same, the respondent filed an appeal before the appellate

Court, which has been allowed by the impugned order.

7.

Since the rival parties have filed affidavit in

respect of their claims of being in possession of the suit

property, at the stage of considering the prayer for

temporary injunction to protect possession claimed by

the respondent, the Courts below were expected to adopt

a reasonable approach.

8.

While setting aside the order of the trial

Court, the appellate Court in paragraph 10 and 11 has

held as follows :-

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“10]

Admittedly, both parties have filed on

record affidavit of witnesses to show their possession

over suit property. However, it is settled principle of

law that the documentary evidence shall prevail over

oral evidence. Upon perusal of the copy of registered

power of attorney dated 30/06/2014, it appears that

the said was executed by the defendant in favour of

the plaintiff in respect of suit property, whereby

plaintiff was authorized to execute sale deed in his

favour or in favour of any purchaser and handover

possession of suit property. The recitals of power of

attorney shows that the plaintiff was authorized to

had over the possession of the suit property, which

clearly indicate that the possession of the suit

property was given by defendant to the plaintiff at

the time of execution of the said power of attorney.

Admittedly, on the basis of said power of attorney

registered sale deed dated 13/07/2017, of the suit

property, was executed in favour of plaintiff. The

recital of sale deed shows that the possession of suit

property is with the plaintiff.

11]

The copy of registered power of

attorney, registered sale deed, mutation entry and

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