Pravin Vijay Desai v. Bhanudas Dajiram Hulwan And ORS

Arun Sankpal

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 17657 OF 2024 Pravin Vijay Desai ..Petitioner

Versus

Bhanudas Dajiram Hulwan & Ors

...Respondents

Mr. Suryajeet P. Chavan, for the Petitioner.

CORAM:

N. J. JAMADAR, J.

DATED :

2nd APRIL 2025 P.C.:

1.

Heard Mr. Chavan, the learned Counsel for the petitioner. 2.

The challenge in this Petition is to a judgment and order dated 2nd September 2024 passed by the learned District Judge, Pune, in MCA No. 409 of 2016, whereby the Appeal preferred by the petitioner against an order passed by the learned Civil Judge, Senior Division, Pune, rejecting the Application for temporary injunction in SCS No. 1129 of 2016, instituted by the petitioner, came to be dismissed by affirming the ARUN RAMCHANDRA SANKPAL order passed by the Trial Court.

ARUN RAMCHANDRA SANKPAL Date: 2025.04.03 14:47:58 +0530 3.

The petitioner instituted a Suit seeking a declaration that the Development Agreement dated 25th July 2016 executed by defendant no.2, who is the cousin of the plaintiff, in favour of defendant no.1 is not binding on the plaintiff and no right, title and interest in the Suit 1/4

flat is created in favour of defendant no.1 on the strength of the said Development Agreement, and the consequential relief of injunction to restrain the defendant nos. 1 and 2 from causing obstruction to the possession and enjoyment of the plaintiff over Flat No.2 (the Suit flat) till the final disposal of the Suit.

4.

In the said Suit, the petitioner filed an application for temporary injunction. By an order dated 7th October 2016, the Trial Court was persuaded to reject the Application observing, inter alia, that the plaintiff failed to establish that he was in possession of Flat No.2 and even otherwise prima facie the plaintiff had no right, title and interest with regard to the Suit flat.

5.

The learned District Judge found no error in the exercise of discretion by the Trial Court and, thus, dismissed the Appeal. 6.

Mr. Chavan, the learned Counsel for the petitioner, submitted that both the Courts below have erred in proceeding on the premise of execution of the impugned Development Agreement by defendant no.2 in favour of defendant no.1. It was submitted that the said Development Agreement came to be executed on the basis of a forged and fabricated Power of Attorney. Mr. Chavan invited attention of the Court to the two Power of Attorneys and made an endeavour to demonstrate how the Power of Attorney, on the strength of which the Development Agreement has been executed, is prima facie forged and fabricated. 2/4

7.

The learned Civil Judge was of the view that the question as to whether the Power of Attorney is forged and fabricated is a matter for adjudication at the trial. The material on record indicated that the plaintiff and his mother were put in possession of the flat on the fourth and fifth floor in a five storied building., which came came to be developed pursuant to the Development Agreement. In that view of the matter, it cannot be said that the defendant had erected the structure sans the Development Agreement.

8.

The view taken by the Courts below is justifiable. There is a prima facie material to show that the plaintiff and his mother have been put in possession of the fourth and fifth floor flats in the building which came to be developed pursuant to the Development Agreement. Prima facie it is inconceivable that such a huge structure could be erected without there being a Development Agreement. The Courts below have recorded concurrent prima facie finding of fact on the basis of objective material, that the plaintiff is not in possession of the Suit flat and, therefore, was not entitled to seek injunctive reliefs to protect the possession. Such prima facie findings of facts are not open for interference in exercise of supervisory jurisdiction. 9.

The Petition, therefore, does not deserve to be entertained. 10.

The Petition stands dismissed.

3/4

11.

It is clarified that aforesaid observations are confined to decide the Petition and the Trial Court shall not be influenced by any of the observations made hereinabove while deciding the Suit. [N. J. JAMADAR, J.] 4/4