Bombay High Court
Mahendra Balraj Potpulewal vs Premsukh Mansukh Sancheti And Others on 17 January, 2020
(1) sa15.20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
946 SECOND APPEAL NO.15 OF 2020
WITH CA/426/2020 IN SA/15/2020
MAHENDRA BALRAJ POTPULEWAL
VERSUS
PREMSUKH MANSUKH SANCHETI AND OTHERS
Mr. N. D. Sonavane, Advocate for the appellant
CORAM : S. M. GAVHANE, J.
DATED : 17.01.2020 PER COURT :- . Appellant, who is defendant No. 2 in Special
Civil Suit No. 26 of 1989 filed by respondent Nos. 1 to 4, against the appellant and respondent Nos. 5 and 6, has filed this second appeal aggrieved by the dismissal of appeal bearing Regular Civil Appeal No. 47 of 2012 filed by him and other defendants aggrieved by the decree for possession passed by the trial Court.
2. Mr. Sonavane, learned counsel appearing for the appellant submitted that the defendants are in possession of the suit premises i.e. three rooms. It is submitted that out of the said three rooms, two rooms were already in possession of the defendants on rent as a tenant given by the landlady Rampyaribai, owner of the ::: Uploaded on - 17/01/2020 ::: Downloaded on - 18/01/2020 08:32:15 ::: (2) sa15.20 property and the defendants are in possession of third room on the basis of oral agreement to sell made in their favour by i.e. GPA holder.
3. Mr. Sonavane, learned counsel further submitted that plaintiffs filed suit for possession against the defendants claiming possession of three rooms in possession of defendants and the shops on the basis of sale deed dated 03/10/1984 executed in their favour by the general power of attorney on the basis of notarized general power of attorney dated 08/10/1983. It is submitted that original owner of the property Rampyaribai died on 07/12/1983. Therefore, general power of attorney dated 08/10/1983 has come to an end on the death of owner of the property on 07/12/1983 and therefore, general power of attorney had no power to execute the sale deed in favour of the plaintiffs. It is also submitted that general power of attorney is not registered and hence it gives no authority to the general power of attorney to execute the sale deed in favour of the plaintiffs.
4. To support his above submission, learned ::: Uploaded on - 17/01/2020 ::: Downloaded on - 18/01/2020 08:32:15 ::: (3) sa15.20 counsel for the appellant has relied upon decision of this Court in the case of Ashok Kumar s/o Dulichand Sharma Vs. Jethmal Motilal Jedia and others, 2009(6) Mh.L.J.629 wherein it was held that power of attorney of such agent must be registered. Person authorised must hold registered Power of attorney and if he does not hold registered power of attorney, the registration at his instance is void.
5. It is further submitted that the trial Court decreed the suit and directed the defendants to vacate the entire suit house except two shops on the ground floor shown in blue lines in the map attached with the plaint and deliver vacant possession of the suit property in favour of the plaintiffs forthwith with directions to pay damages to the plaintiffs for their illegal use and occupation of the suit premises except the two shops on ground floor. It is submitted that all the defendants had filed Regular Civil Appeal No. 47 of 2012. The Principal District Judge, Aurangabad heard said appeal and same has been dismissed on 15/10/2019. Learned counsel further submitted that till the decision of appeal their possession over the suit property/house ::: Uploaded on - 17/01/2020 ::: Downloaded on - 18/01/2020 08:32:15 ::: (4) sa15.20 except two shops as mentioned in the order of the trial Court, was protected. The appellate Court even on the date of the dismissal appeal on 15/10/2019 as per order below Exh. 50 in Regular Civil Appeal No. 47 of 2012 protected the defendants possession till appeal period is over, by passing order on 15/10/2019 and operating part of said order reads thus:-
"1. Execution of decree in Special Civil Suit No. 26/1986 is hereby stayed till appeal period is over on furnishing the security of Rs. 25 laksh by the defendants as per Order XLI Rule 5(3)(c) of the C.P.C.
2. Defendants are permitted to furnish the security on or before 07.11.2019.
3. It is hereby made clear that, till 07.11.2019 even without furnishing the security by the defendants execution of the decree is stayed."
In the above circumstances learned counsel appearing for the appellant submits that above said protection granted by the Principal District Judge, Aurangabad may be continued for some days as the date before the executing Court is fixed on tomorrow i.e. on 18/01/2020.
6. It appears that caveat is filed by respondent ::: Uploaded on - 17/01/2020 ::: Downloaded on - 18/01/2020 08:32:15 ::: (5) sa15.20 No. 1, but nobody is present for respondent No.1- caveator. Learned counsel for the appellant also fairly states that he has not given intimation to respondent No. 1 or his advocate about today's circulation.
7. In the circumstances noted above and having regard to submissions of the learned counsel appearing for the appellant, notice before admission is required to be issued to respondent Nos. 1 to 4/original plaintiffs and in the circumstances present in the case some protection needs to be granted to the appellant.
8. Issue notice before admission to the respondent Nos. 1 to 4, returnable on 11/02/2020.
9. Order dated 15/10/2019 below Exh. 50 passed by the Principal District Judge, Aurangabad in Regular Civil Appeal No. 47 of 2012 to continue till 11/02/2020.
10. Parties to act upon authenticated copy this order.
[S. M. GAVHANE, J.] ssp/Jan.20/sa15.20 ::: Uploaded on - 17/01/2020 ::: Downloaded on - 18/01/2020 08:32:15 :::