In this petition, petitioner-original plaintiff has challenged the order of appellate forum passed in Misc. Civil Appeal No. 89 of 2007 dated 27th July 2007 whereby an application for injunction preferred by the original defendant-respondent herein was allowed the said appeal setting aside the order of the trial Court vacating the interim injunction in favour of the present petitioner in Regular Civil Suit No. 154 of 2005.
According to the petitioner, a suit is filed against the respondents no. 1 & 2 originally, and later on against the respondent no.3, seeking permanent injunction to the effect that the defendants respondents herein be restrained from selling, transferring or alienating the land in any mode or manner and restraining them from interfering with the peaceful possession of the plaintiffs in respect of the suit land.
Respondent no.1 was owner of one-forth undivided share in the agriculture land admeasuring 44,819 sq.m. He executed an agreement to sell in favour of the petitioner plaintiff in respect of 44,819 sq.m for a total sale consideration of Rs. 8,00,000/= paid by the petitioner herein to the defendant no.2 herein-Shri Vithhaldas Mathurdas Patel who was the power of attorney holder of the respondent no.1 by issuing the cheques. The said agreement to sell was also registered with the Office of Sub-Registrar, Kalol vide registration no. 2463 and the respondent no.2 executed a Supplementary-cum-Possession Agreement in favour of the plaintiff, which has been notarized at Serial No. 352/6. Admittedly, the total amount of sale consideration has been paid to the respondent no.2 in respect of the suit land. On 28th November 2003, the respondent no.2 executed a declaration in favour of the petitioner which was notarized, handing over possession of the suit land to the plaintiff-petitioner.
On 27th December 2005, as contended in the plaint, some unknown persons inquired in respect of the suit land, showing their intention to purchase the land and negotiations since had initiated with the original owner, the petitioner brought the suit for permanent injunction seeking relief of interim injunction.
On hearing both the sides, the trial Court granted relief in favour of the present petitioner. The trial Court took into consideration the registered agreement to sell executed by the power of attorney as also the Supplementary-cum-Possession Agreement. What further weighed with the trial Court is the payment of sale consideration to the tune of Rs. 8,00,000/=. Therefore, it deemed it fit to direct maintenance of status quo with respect to one-forth undivided share of the respondent no.1.
The said order, when challenged before the appellate Court, as mentioned hereinabove, the Court quashed such an order by detailed reasonings. It was noted by the Court that the respondent no.2 who was power of attorney had no authority to sell the land and since this had been categorically mentioned in the document itself and yet the power of attorney holder exceeded his authority; having acted without explicit or implied authority, and therefore, the document is not a legally enforceable document in the eye of law. The Court also noticed from the documentary evidences that the respondent no. 1 alongwith other co-owners namely [1] Kashiben Keshvlal Patel; [2] Meenaben Mathurdas Patel; and [3] Savitaben Kantilal Patel jointly owns the property and the property still continues to be in the name of all the co-owners. It concluded that the trial Court made an error to render protection to the petitioner on the basis of registered Banakhat and all other documents mentioned hereinabove, when in fact as also the law, did not permit respondent no. 2 to execute such a document.
On having heard learned advocates for the respective parties and on having examined the materials on record, at the outset, it is required to be noted that there does not appear to be any jurisdictional error nor any material perversity warranting any interference by this Court in supervisory jurisdiction vested under Article 227 of the Constitution of India.
One of the main contentions all along is that the power of attorney document enables the respondent no.2 to execute agreement to sale in favour of the petitioner. As can be seen from the record, the document does not authorize respondent no.2 to sell the land. Although an attempt is made to point out that the original document is misplaced and contention of the petitioner with regard to the absence of recital in the power of attorney document authorizing respondent no.2 to sell the land can be raised at the time of the trial, does not weigh with the Court. As rightly pointed out by the learned advocate for the respondent no.1 that any person who has parted with the huge sum of Rs. 8,00,000/= towards the sale the time of agreement to sale and payment of consideration thereof would need for careful enough to get the power of attorney document verified. Assuming that the respondent no.2 after having pocketed the amount of sale consideration would choose not to support the cause of the petitioner, but, the petitioner which has preferred the suit will have to stand on his own legs and the basic care the trial Court had needed to take before it granted equitable relief and therefore, the appellate court was absolutely right in quashing the order passed by the trial Court where it only depended upon the registered agreement to sale, the document of declaration and possession agreement alongwith proof of payment through cheques of the sale consideration disregarding the basic authority and entitlement to pass on the title of the suit property.
Another aspect that will have to be considered as advanced before this Court is that the suit of the petitioner plaintiff is only for permanent injunction where there is no relief sought of specific performance. Here also, an attempt is made on the part of the learned advocate for the petitioner that permission under Order 2 Rule 2 CPC which would enable the petitioner plaintiff to ask for other and further relief at the future date. According to him, such a permission has been given subject to the law of limitation as would prevail. Thus, it is justiciable that the petitioner was intending agreement to be translated into registered sale document, and therefore, the suit was merely filed for permanent injunction. Even otherwise, as submitted further, the possession would go with the title.
In support of his submission, learned advocate placed reliance on the decisions in case of Kammana Sambamurthy {D} by Lrs. vs. Kalipatnapu Atchutamma [D], reported in AIR (2011) SC 103; and of Mehar Chand Das v. Lal Babu Siddique & Ors., reported in AIR 2007 SC 1499.
This issue requires no dilation either on facts or on law in as much as the very basis of the material bringing the suit is found hollow and unsustainable. Petitioner whether could have preferred the prayer of specific performance at a later date in wake of such permission is all an academic discussion in wake of glaring facts.
There is nothing that could be pointed out either from the documentary evidences or from the discussion held by the appellate forum that there is no material illegality which needs the cure in the supervisory jurisdiction. In such a case, therefore, the Court shall have to remind itself of the decision rendered by the Apex Court in case of Surya Dev Rai v. Ram Chander Rai, reported in (2003) 6 SCC 675, and therefore, this petition does not deserve to be entertained.
Even independently examining the issue also, it can be noted at the cost of repetition that the power of attorney document does not contain recital authorizing the respondent no.2 to execute any agreement to sale. Learned advocate appearing for the respondent no.2 has very fairly submitted that there is already a complaint lodged against the respondent no.2 and the only remedy available with the petitioner is to file a suit for recovery of the amount which has been given to the power of attorney holder by way of cheques. He in fact had no authority and he had executed such a document, therefore, it was a nullity in the eyes of law.
On cumulative reading of all the documents placed before the Court, this Court is of the opinion that no interference is required in the order passed by the appellate forum. This petition, under the circumstances, fails and the same is dismissed. Rule stands discharged with no order as to costs. Ad interim relief granted earlier stands vacated.
Record and proceedings be sent to the trial Court forthwith.
{Ms.
Sonia Gokani, J.} Prakash*