RASIKBHAI SANKALESHWAR TRIVEDI Vs. SANJAYBHAI BABUBHAI PATEL

JUDGEMENT

(1.) This Appeal from Order is filed against an order passed below Ex.6 in Special Civil Suit No.226/2002 dated 31/01/03. Application 6 was filed for interim relief, wherein the Court had initially passed an order on 25/11/02, issuing 'Notice to show cause', returnable on 30/11/02.

(2.) The case of the plaintiff is that, the plaintiff had executed a Power of Attorney on 28/03/91 in favour of defendant no.1 (Sanjay Babubhai Patel). According to the plaintiff the said Power of Attorney was for limited purpose that is, for getting the land in question converted from new tenure to old tenure; that the defendant no.1 has sold that land, though he was not authorized for the same, in favour of defendants no.2 to 4. The plaintiff has therefore filed the suit for declaration to the effect that defendant no.1 did not have any power to sell the land in favour of defendants no.2 to 4; that the sale deeds executed in favour of defendants no.2 to 4 by defendant no.1 be cancelled and a permanent injunction be issued against defendant no.1, restraining him from dealing with the property in question in any manner whatsoever.

(3.) The learned Judge, after taking into consideration the rival contentions of both the sides, has recorded convincing reasons in paragraphs 8 and 9 of its order for not allowing the application for injunction. The grounds / reasons recorded by the learned Judge are considered by this Court and the same are found acceptable on all counts. The ground which has weighed with the learned Judge is that though the plaintiff has based his claim on a Power of Attorney, which according to the plaintiff was executed on 28/03/91, is not produced by the plaintiff till date. Even at this late stage, a copy of the said Power of Attorney dated 28/03/91 is not made available to this Court for perusal. It is also recorded by the learned Judge that the plaintiff is not able to establish his case; that, the Power of Attorney was executed by the plaintiff in favour of defendant no.1, only for limited purpose. The plaintiff has though produced a copy of the reply given by 'H.Desai & Company' to the objections filed by the plaintiff, through his advocate, to a public notice given by the defendant no.1, from which it transpires that the plaintiff Rasikbhai Sankaleshwar Trivedi along with six other persons had executed a Power of Attorney on a stamp paper of Rs.70/- on 28/03/95 before Notary Shri J G Gunatit and that it is in pursuant to that Power of Attorney that the defendant no.1 executed the sale deed. The plaintiff has not mentioned these facts in the plaint. Not only that, in the said Notice, though the names of all the persons in whose favour the sale deeds are executed are mentioned, the plaintiff has chosen not to join all of them as party defendants. The plaintiff has not controverted the contents of the written statements filed by the defendants on 02/05/03. More than a year has passed by now but the plaintiff has neither controverted the contents of the written statement nor substantiated his case by producing any cogent and convincing evidence.