Mrs. Ishrath Sultana vs Smt. Khurshidunnisa

B. Manohar

The appellant is the plaintiff being aggrieved by the order dated 26.09.2011 made on I.A.No. 2 in OS No. 1584/2011 passed by the First Additional City Civil and Sessions Judge, Bangalore, wherein I.A.No.II filed under order 39 Rule 1 and 2 was dismissed has filed this appeal. The facts of the case are as follows:

The plaintiff has filed a suit seeking for declaration declaring that the sale deed dated 09.11.2010 executed by the alleged Power of Attorney holder of the plaintiff in favour of the Respondent is null and void and also sought for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property.

Further, IA No. 2/2011 has been filed U/O 39 Rules 1 & 2 of C.P.C. seeking for Temporary Injunction restraining the defendant from alienating the suit schedule property pending disposal of the suit.

In the application, the plaintiff has contended that she is the absolute owner of the property bearing vacant Site No. 7, measuring 30'' x 40'' situated at Nagavara Village, Kasaba Hobli, Bangalore North Taluk. The same was purchased on 17.09.2004. In view of the dispute raised by some of the LRS of her vendor, the defendant took her signatures on the blank papers as well as the stamp paper for the purpose of settling the dispute. Further she also borrowed Rs. 50,000/- from the defendant for settling the dispute and she also issued a blank cheque. It is the allegation of the plaintiff that the signature made on the blank stamp paper was made use for the purpose of creating Power of Attorney and the suit schedule property was registered in favour of the defendant.

It is the specific case of the plaintiff that, she had not executed any irrevocable General Power of Attorney in favour of Sri. Syed Zafar and intending to execute the sale deed in respect of suit schedule property in favour of defendant on 09.11.2010. In view of that, she sought for declaration declaring that the sale deed dated 09.11.2010 executed by the alleged General Power of Attorney holder in favour of the Respondent as null and void and also restraining the defendant from alienating the suit schedule property pending disposal of the suit.

In pursuance to the notice issued by the Court below, the defendant entered appearance and has filed her written statement contending that, on the basis of the General Power of Attorney executed by the plaintiff in favour of Sri. Syed Zafar on 08.03.2007. the said Shri. Syed Zafar has executed the sale deed in respect of the suit schedule property on 09.11.2010. Since then, the defendant has been in possession and enjoyment of the said land. After obtaining necessary permission from the Competent Authorities, he has put up a construction. She is a bonafide purchaser and she is not aware of any of the disputes regarding the execution of Power of Attorney in favour of Sri. Syed Zafar and sought for dismissal of the suit.

The Trial Court on the basis of the pleadings of the parties, framed necessary issues. After hearing the parties and considering the pleadings and documentary evidence, the Trial Court rejected IA No. 2/2011 filed U/O 39 Rules 1 & 2 of C.P.C. by Order dated 26.09.2011 holding that the plaintiff has not made a prima facie case and balance of inconvenience also does not lie in favour of the plaintiff and if the Interim Order is granted as sought for by the plaintiff, the defendant will be put to irreparable injury since she has invested huge amount on tile suit schedule property.

Being aggrieved by the order dated 26.09.2011 made on IA No. 2/2011, the plaintiff has preferred this appeal.

Sri. Rakshit K.N., Advocate appealing for the appellant, contended that the order passed by the Court below is contrary to law. The appellant has produced necessary materials before the Court below to show that in order to settle the dispute with regard to her property, the defendant has taken some signatures on the blank stamp papers and on some blank cheques. The said blank stamp papers have been made use of for the purpose of creating Power of Attorney. On the basis of the Power of Attorney, the respondent got the sale deed registered in her name. The Trial Court without considering all these aspects rejected IA No. 2/2011 filed by the plaintiff and sought for setting aside the same.

On the other hand. Sri. S.K. Acharya. advocate appearing for the Respondent argued in support of the order passed by the Trial Court on IA No. 2/2011. He contended that he is a bonafide purchaser of the site purchased on 09.11.2010. Thereafter, he got all the revenue records entered in her name and after obtaining necessary permission from the Competent Authorities, the construction came up to the lintel level. At this point of time, if any Interim Order is granted, the respondent will be put to irreparable. Therefore he sought for dismissal of the appeal.

I have carefully gone through the arguments addressed by the learned counsel for the parties and perused the Order impugned, pleadings and other necessary documents adduced by the parties.

Prima facie, I am of the opinion that, in pursuance to the sale deed dated 09.1.1.2010, the defendant is putting up construction. It is a specific case of the defendant that, the appellant had executed the irrevocable General Power of Attorney in favour of Sri. Syed Zafar on 08.03.2007. The said Sri. Syed Zafar has executed the sale deed in favour of the defendant in respect of suit schedule property on 09.11.2010. Since then, she has been in possession and enjoyment of the property and putting up the construction. The case of the appellant is that, the defendant played fraud on the appellant taking her signatures on the blank stamp papers as well as on the blank cheques. The blank stamp papers are made use for the purpose of creating the irrevocable General Power of Attorney in favour of Sri. Syed Zafar and got the sale deed and the appellant is entitled for Interim Order restraining the defendant from alienating suit schedule property. In order to protect the interest in the properly, the Court after considering the matter, held that the defendant has been in possession of the suit schedule property from the date of sale deed dated 19.11.2010 and she has put up construction. If any Interim Order is passed at this stage, the defendant will be put to greater hardship. Any construction made during the pendency of the case at her risk is subject to the result, of the suit. If the appellant succeeds in the suit, she is entitled for the benefit of the same.

At this point of time, the appellant has not made out a case to interfere with the Order passed by the trial Court.

If the respondents put up any construction, it will be subject to the result of the suit. With the above observations, the appeal is disposed of.