ao962-22.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO.962 of 2022

Minal Enterprises .. Appellant

Versus

Madhoor Realtors Pvt.Ltd. & Ors. .. Respondents

Mr.Ramesh D. Soni a/w Mr.Tushar R. Momaiyah i/b M/s.Ram & Co., 

AdvocateS for the Appellant.

Mr. Ranjit Thorat, Senior Advocate a/w Mr.Kishor Patil a/w Ms.Pratiba 

Hake Patil a/w Mr.Chetan A. Alai a/w Mr.Pandit Kasar a/w Ms.Rama 

Somani a/w Mr. Rishabh Chaurasia i/b Mr. Pandit Pawar i/b Mr.Chetan A. 

Alai, Advocates for the Respondents.

CORAM: FIRDOSH P. POONIWALLA, J.

RESERVED ON: DECEMBER 11, 2025

PRONOUNCED ON: JUNE 9, 2026

JUDGEMENT:

1. The present Appeal from Order (AO) is filed challenging the

Order dated 8

th

September 2022 passed by the Court of the Extra Joint Civil

Judge (Senior Division), Nashik, rejecting the Exhibit 5 Application of the

Appellant (Plaintiff) filed in Special Civil Suit No.182 of 2019.

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TRUSHA

TUSHAR

MOHITE

Digitally

signed by

TRUSHA

TUSHAR

MOHITE

Date:

2026.06.09

18:24:34

+0530

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FACTS

2. The facts of the case are as follows:

a. By an Agreement for Sale dated 10

th

April 1986 executed by

the original owners in favour of the Appellant, they agreed to sell

to the Appellant Survey No.32 of Nashik, admeasuring 11 acres

(on the south side of the canal). The suit property is a portion

thereof admeasuring 3890 Sq. metres.

b. A Power of Attorney dated 10

th

April 1986 was also

executed by the owners in favour of the Appellant and others

authorizing them to act on behalf of the owners for developing

the entire property of 11 acres on the south side of the canal.

c. On 10

th

April 1986, a tentative layout for the entire

property admeasuring 42932 sq.mtrs., including the suit

property, was sanctioned by the Nashik Municipal Corporation

pursuant to the plans submitted by the Appellant.

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d. On 15

th

October 1987, Special Civil Suit No.428 of 1987 was

filed by the Appellant and others against the original owners for

specific performance of the Agreement for Sale dated 10

th

April

1986.

e. On 12

th

November 1987, permission was granted by the

Divisional Commissioner, Nashik, for transfer of the said entire

land admeasuring 42932 sq.mtrs. (11 acres), including the suit

property, in favour of the Appellant, and for permitting the non

agricultural user thereof. The Appellant paid Nazrana amount of

Rs.4,02,488/- for the said conversion.

f. On 14

th

January 1991, Special Civil Suit No.428 of 1987

was compromised between the parties and the owners agreed to

convey the entire property, including the suit property, to the

Appellant and others. The Court passed the Compromise Decree

accordingly.

g. Special Civil Suit No.54 of 1991 and Regular Civil Suit

No.117 of 1991 were filed by one Vaibhav Construction and

Others against the original owners in respect of the suit property

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admeasuring 3890 sq.mtrs. An ad-interim temporary injunction

was granted against the original owners in respect of the suit

property. On 26

th

April 1991, the order of temporary injunction

was vacated by the Court.

h. The owners executed an additional irrevocable Power of

Attorney in respect of the entire property of 11 acres on the

south side of the canal, including the suit property, in favour of

the partners of the Appellant (the Appellant was earlier a

partnership and is now a sole proprietorship firm) to do all such

acts for developing the said property which was agreed to be

conveyed to the Appellant and others by the owners.

i. On 28

th

August 1991, an Order under Section 8(4) of the

Urban Land Ceiling Act, 1976, was issued by the Deputy

Collector and Competent Authority, Urban Land Ceiling, Nashik,

as regards the holding of the original owners.

j. Two registered Sale Deeds dated 13

th

May 1991 were

executed by the original owners in favour of the Appellant

and/or their nominees. Although the Sale Deeds excluded the

suit property, it was also mentioned therein that the entire

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consideration of the said property, including the suit property,

was received by the owners and possession was also given to the

Appellant and others.

k. On 27

th

December 1991, an NA order was issued by the

Collector Nashik. The Nazrana amount was paid by the

Appellant for the entire land, including the suit property.

l. On 14

th

February 1992, the final layout was sanctioned by

the Nashik Municipal Corporation for the entire area. However,

the suit property was separately earmarked in the said layout

under the remark, “the retention kept pending”, due to the fact

that the suit mentioned hereinabove was pending at the relevant

time.

m. It is the case of the Appellant that the sanction for the

portion comprising of the suit property was kept pending only

due to the pendency of the suit and that the ownership and

possession of the Appellant in respect of the suit property was

never questioned.

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n. On 2

nd

December 1992, pursuant to an Application made

by the Appellant to the DILR, a demarcation plan was prepared

by the DILR in respect of the entire property purchased by the

Plaintiff, being Survey No.32, of which the suit property was a

part.

o. On 1

st

December 1992 another Order was passed under

Section 8(4) of the Urban Land Ceiling Act, 1976 by the

Competent Authority, Urban Land Ceiling, Nashik, in respect of

the holding of the original owners, which included the suit

property.

p. On 14

th

June 1993, a tentative layout plan was submitted

by the Appellant to the Nashik Municipal Corporation in respect

of the suit property, which was kept pending in the earlier layout

due to the pending Civil Suit, and which was sanctioned due to

the vacating of the stay orders.

q. On 1

st

October 1996, the Appellant again approached the

DILR to get a fresh measurement demarcated sketch in respect

of the suit property, which was kept pending due to the Court

orders.

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r. On 6

th

December 2018, a public notice appeared in the

newspaper for verification of title of the suit property proposed

to be purchased by the Respondents.

s. By his Advocate’s letter dated 12

th

December 2018, the

Appellant objected to the proposed transaction and asserted that

he was the owner of, and in possession, of the suit property.

t. Even before the said public notice was issued on 6

th

December 2018, Respondent No.3, acting on an alleged Power of

Attorney given by the owners, executed a Sale Deed in favour of

Respondent No.1 in respect of an area of 3654 sq.mtrs, which is

a portion of the suit property. It is the case of the Appellant that

the said Sale Deed was executed on the basis of a Power of

Attorney given by the owners in respect of another property

which was fully developed and sold by Respondent No.3 on 2

nd

September 2010. The Power of Attorney was misused by

Respondent No.3. The said Power of Attorney was in respect of

8055 sq.mtrs of land which was on the north side of the canal

whereas the suit property is on the south side of the canal. It is

the case of the Appellant that the Sale Deed, on the face of it, is

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bogus, in as much as apart from there being no authority to sell,

even the consideration was being paid by post dated cheques.

u. FIR No.I-37 of 2021 dated 18

th

February 2021 and FIR

No.I-175 of 2021 dated 17

th

November 2021 was lodged against

Respondent No.3. It is the case of the Appellant that, in the

investigation, it has come on record that Respondent No.3 had

used three different Powers of Attorney, which are forged in

respect of the suit property. Pursuant to the said FIR

Respondent No.3 was arrested.

v. It is the case of the Appellant that the original owners had

executed a Development Agreement and General Power of

Attorney in favour of Respondent No.3 only in respect of land

admeasuring 8055 sq.mtrs., which is on the north side of the

canal. The said portion is fully developed by Respondent No.3

and sold. Respondent No.3, however, misused the said Power of

Attorney for the purpose of executing a bogus Sale Deed in

respect of the suit property, which was already sold to the

Appellant and which is on the south side of the canal.

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w. In these circumstances, the Appellant filed the present

Suit, being S.C.S No.182 of 2019, on 23

rd

April 2019. In the Suit,

the Appellant filed an Exhibit 5 Application seeking interim

reliefs. The said Exhibit 5 Application was rejected by the

impugned Order dated 8

th

September 2022. Hence, the present

Appeal is filed by the Appellant.

SUBMISSIONS OF THE PARTIES

3. Mr.Soni, the learned counsel appearing on behalf of the

Appellant, submitted that the impugned Order was passed without any

finding on

prima facie case, balance of convenience and irreparable loss. The

Learned Judge, while deciding the Application for interim injunction, has

observed ‘neither of the parties’ in respect of the points as to whether the

Appellant had proved a prima facie case in his favour and in respect of in

whose favour the balance of convenience lies. Further, the Learned Judge

had observed "does not survive" in the context of the point as to whether

irreparable loss would be caused by grant of injunction than that of its

refusal.

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4. Mr.Soni submitted that the impugned order is erroneous in as

much as it does not give any finding on any of the ingredients required to be

considered in an Application for interim injunction under Order 39 of the

Code of Civil Procedure, 1908 (CPC). Mr.Soni submitted that, thus, the

Learned Judge had failed to exercise his jurisdiction under the provisions of

the CPC.

5. Next, Mr.Soni submitted that the Appellant is claiming the

property under an Agreement for Sale dated 10

th

April 1986 and the

compromise decree passed in respect thereof. Mr.Soni submitted that the

compromise filed by the parties in the said Suit clearly acknowledged that the

Appellant had paid and the owner had received the entire consideration for

the property agreed to be sold to the Appellant, including the suit property,

and that possession thereof was also handed over to the Appellant.

6. Mr.Soni submitted that there was no dispute about the same

between the Appellant and the original owners till date.

7. Mr.Soni submitted that the original owners had executed a

Development Agreement with Power of Attorney in favour of Respondent

No.3 in respect of a totally separate land admeasuring 8055 sq. meters on the

north side of the canal. The said land is fully developed and sold by

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Respondent No.3. Respondent No.3, by misusing the NA order in respect of

the land admeasuring 8055 sq. meters on the north side of the canal,

fraudulently got the revenue record in respect of his land rectified by

including the suit property.

8. Further, Mr.Soni submitted that Respondent No.3, being aware

of the fact that the suit property did not belong to him, executed a bogus Sale

Deed without consideration in favour of Respondent No.1 wherein he is the

signatory both as a vendor and a purchaser. The public notice for verification

of title was issued on 6

th

December 2018 whereas the Sale Deed was executed

prior thereto on 24

th

July 2018.

9. Next, Mr.Soni submitted that the Appellant has acted on the

Agreement for Sale and the Compromise Decree passed in the suit for specific

performance as also on the power of Attorney executed by the original owner

in favour of the Appellant in respect of the suit property. The Appellant has

paid the entire consideration and is put in possession of the suit property.

The Appellant has obtained NA orders and has also submitted and got

sanctioned layout plans from the Nashik Municipal Corporation in respect of

the suit property and has paid all the necessary charges and premium for the

same.

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10. Mr.Soni submitted that the original owner has throughout

acknowledged the ownership and the rights of the Plaintiff to the suit

property and even today confirms the same. The original owner and the

Appellant are both aware of and have acted upon the Compromise Decree.

11. Further, Mr.Soni submitted that, on the complaint filed by the

Tahsildar, FIR, being FIR No. 1-175 of 2021, dated 17

th

November 2021, was

registered against Respondent No.3 in the Satpur police station for offences

under Sections 420, 467, 468, 193(2), 199, 200 R/w Section 34 of the Indian

Penal Code, 1860. The original owners have given statements before the

Investigating Officer to the effect that they had never executed a Power of

Attorney for the suit property in favour of Respondent No.3 and that the said

land was already sold to the Appellant. Further, Mr.Soni submitted that the

Powers of Attorney used by Respondent No.3 to execute the Sale deed in

favour of Respondent No.1 were forged and fabricated and was not issued by

the original owners.

12. Mr.Soni submitted that the Appellant has thus made out a more

than strong prima facie case for grant of interim relief in his favour. The

balance of convenience is also in the favour of the Appellant. The

Respondents, having acted on and having created bogus documents by

forging and fabricating the record, cannot claim any rights under the bogus

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Sale Deed. Mr.Soni submitted that it is in these circumstances that the

Appellant was entitled to the interim relief sought by him.

13. On the other hand, Mr.Ranjit Thorat, the learned Senior

Advocate appearing on behalf of the Respondents, supported the impugned

Order dated 8

th

September 2022 and submitted that the present AO should

be rejected.

14. Mr.Thorat submitted that the Compromise Decree records that

the suit property had to be retained. The Suit in respect of the retained area

was disposed of on 18

th

October 1994. Hence, the Appellant had to execute

the Compromise Decree. Mr.Thorat submitted that the present Suit is

misconceived as, instead of filing the present Suit, the Appellant ought to

have executed the Compromise Decree. Mr.Thorat submitted that, on this

ground alone, no reliefs can be granted in the present Suit.

15. Further, Mr.Thorat submitted that in the Suit, the Appellant has

sought the relief of cancellation of Sale Deed dated 24

th

July 2018. Mr.Thorat

submitted that this relief of cancellation had to be sought by the owner of the

suit property and not by the Appellant.

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16. Further, Mr.Thorat referred to paragraphs 25, 26 and 27 of the

impugned Order and submitted that the findings of the Learned Judge on

non-joinder of parties is correct and, therefore, the Learned Judge has

correctly rejected the Exhibit 5 Application filed by the Appellant for interim

reliefs.

17. Mr.Thorat further submitted that the present suit, which is

based on the Compromise Decree dated 14

th

January 1991, is barred by

limitation.

18. Further, Mr.Thorat also referred to paragraph 30 of the

impugned Order and submitted that the Learned Judge has rightly held that

the Appellant was required to execute the Compromise Decree, and in the

absence of the Appellant executing the Compromise Decree, Application

under Exhibit 5 cannot be granted.

19. In support of his submissions, Mr.Thorat also relied upon the

judgement of the Hon’ble Supreme Court in Anathula Sudhakar vs. P.Buchi

Reddy (Dead) by LRs. And Others (2008) 4 SCC 594.

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ANALYSIS AND FINDINGS

20. I will first deal with the issue of limitation. The Respondents

have contended that the present Suit is barred by the law of limitation. The

present Suit is filed for the cancellation of the Sale Deed dated 24

th

July 2018

and for the reliefs consequential thereto. Article 59 of the Limitation Act,

1963 provides that, for a suit to cancel or set aside a instrument or decree, or

for rescinding a contract, the period of limitation is three years from when

the facts entitling the Plaintiff to have the instrument or decree cancelled or

set aside or the contract rescinded first became known to the Plaintiff.

21. In the present case, even assuming that the facts entitling the

Plaintiff to have the Sale Deed dated 24

th

July 2018 cancelled became known

to the Plaintiff on 24

th

July 2018 itself, the Appellant has filed the Suit on 23

rd

April 2019, i.e. within three years from the date of the Sale Deed dated 24

th

July 2018. In these circumstances, in my view, the present Suit is not barred

by the law of limitation.

22. Further, I am not inclined to accept the argument that the

Appellant ought to have executed the Compromise Decree instead of filing

the present Suit. By the Compromise Decree, it was agreed that the suit

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property would be conveyed to the Appellant. Therefore, the Appellant had a

right in law to get a conveyance of the suit property.

23. Section 31 of the Specific Relief Act, 1963 reads as under:

“31. When cancellation may be ordered. (1) Any person

against whom a written instrument is void or voidable, and who

has reasonable apprehension that such instrument, if left

outstanding, may cause him serious injury, may sue to have it

adjudged void or voidable, and the Court may, in its discretion,

so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian

Registration Act, 1908 (16 of 1908), the Court shall also send a

copy of its decree to the officer in whose office the instrument

has been so registered; and such officer shall note on the copy of

the instrument contained in his books the fact of its

cancellation.”

24. Under the provisions of Section 31 of the Specific Relief Act,

1963, any person against whom a written instrument is void or voidable, and

who has reasonable apprehension that such instrument, if left outstanding,

may cause him serious injury, may sue to have it adjudged void or voidable,

and the Court may, in its discretion, so adjudge it and order it to be delivered

up and cancelled. Since the Appellant has a prior right in law to get a

conveyance of the suit property, the said Sale Deed dated 24

th

July 2018

would be void or voidable against the Appellant, and if it is left outstanding,

may cause serious injury to the Appellant. In these circumstances, the

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Appellant has a right to file a Suit for cancellation of the said Sale Deed dated

24

th

July 2018 and does not necessarily have to execute the Compromise

Decree.

25. As far as non-joinder of the parties is concerned, in the

impugned Judgement, the Learned Judge has come to the conclusion that

there was more than one Plaintiff in Special Civil Suit No.428 of 1987 but

they were not made parties to the present Suit and, therefore, the present

Suit is bad for non-joinder. I am afraid I am unable to accept this finding.

Section 31 of the Specific Relief Act, 1963 entitles any person against whom a

written instrument is void or voidable, and who has reasonable apprehension

that such instrument, if left outstanding, may cause him serious injury, to sue

to have the instrument adjudged as void or voidable. In the light of the

provisions of Section 31 of the Specific Relief Act, 1963, the Appellant alone is

entitled to file the present Suit as the Sale Deed dated 24

th

July 2018 is void

or voidable against him also and he has reasonable apprehension that such

instrument, if left outstanding, may cause him serious injury.

26. Further, as far as non-joinder of parties is concerned, the

Learned Judge has also held that the owner of the suit property was not made

a party to the Suit, and therefore, the Suit is bad for non-joinder.

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27. I am unable to accept this finding. The Power of Attorney holder

who signed the Sale Deed dated 24

th

July 2018 and the purchasers therein

have been made parties to the present Suit. In these circumstances, it is not

required that the owner should also be made a party to the present Suit. The

allegation of the Appellant is against the power of attorney holder and the

Appellant has no allegation or grievance against the owner.

28. In the light of the aforesaid, I will now have to consider as to

whether the Appellant is entitled to an injunction as sought by him. In this

regard, it is important to note that by an Agreement for Sale dated 10

th

April

1986 executed by the original owners in favour of the Appellant, the original

owners agreed to sell to the Appellant Survey No.32 at Nashik, admeasuirng

11 acres, on the south side of the canal. Further, on 10

th

April 1986, a Power

of Attorney was executed by the owners in favour of the Appellant and others

authorizing the Appellant to act on behalf of the owners for developing the

entire property of 11 acres on the south side of the canal. Since certain

disputes arose between the Appellant and the original owners, Special Civil

Suit No.428 of 1987 was was filed by the Appellant and others against the

original owners for specific performance of the Agreement for Sale dated 10

th

April 1986. On 14

th

January 1991, Special Civil Suit No.428 of 1987 was

compromised between the parties and the owners agreed to convey the entire

property admeasuring 11 acres, which included the suit property, to the

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Appellant and Others. The Court passed the Decree accordingly. Further, on

13

th

May 1991, the original owners executed an additional irrevocable Power

of Attorney in respect of the entire property of 11 acres on the south side of

the canal, which included the suit property, in favour of the Appellant and

others, to do all such acts for developing the said property which was agreed

to be conveyed to the Appellant by the owners. Further, on 13

th

May 1991,

two registered Sale Deeds were executed by the original owners in favour of

the Appellant and others. Under the said Sale Deeds, the entire

consideration in respect of the suit property was paid by the Appellant to the

original owners. The suit property was excluded from the said Sale Deeds as

another Suit in respect thereof was pending. On 27

th

December 1991, NA

Order was issued by the Collector Nashik. The Nazrana amount was paid by

the Appellant and others for the entire land including the suit property. On

1

st

December 1992, another Order was passed under Section 8(4) of the

Urban Land Ceiling Act, 1976 by the Competent Authority, Urban Land

Ceiling, Nashik in respect of the holding of the original owners, which

included the suit property. On 14

th

June 1993, the tentative layout was

submitted by the Appellant and others to the Nashik Municipal Corporation

in respect of the suit property, which had been earlier kept pending as orders

were passed in the other Suit filed in respect thereof.

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29. Despite the aforesaid, Respondent No.3, by misusing the power

of attorney in his favour in respect of totally separate land admeasuring 8055

sq.mtrs., which is on the north side of the canal, executed the said Sale Deed

dated 24

th

July 2018 in respect of the suit property.

30. Under the Compromise Decree dated 14

th

January 1991, the

Appellant has a right to obtain a conveyance in respect of the suit property.

The Appellant has paid the entire consideration for the suit property. The

Appellant has obtained NA orders and also submitted and got sanctioned lay

out plans from the Nashik Municipal Corporation in respect of the suit

property and has paid all the necessary charges and premium for the same.

The original owner has not disputed the Appellant’s right to get a conveyance

in respect of the suit property.

31. For all the aforesaid reasons, in my view, the Appellant has made

out a prima facie case for granting reliefs in the Exhibit 5 Application filed by

him.

32. In light of the aforesaid, and especially since the Appellant has a

right to get a conveyance of the suit property and has incurred expenditure in

respect of the suit property, whilst the Respondents have executed the Sale

Deed dated 24

th

July 2018 on the basis of the Power of Attorney given to

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Respondent No.3 in respect of the land on the northern side of the canal, in

my view, the balance of convenience is in favour of the Appellant and against

the Respondent. Further, if the interim relief sought by the Appellant is not

granted, then irreparable prejudice, harm and injury will be caused to the

Appellant as the Respondents would alienate or develop the suit property.

33. For all these reasons, the Appellant is entitled to an injunction as

sought for.

34. As far as the judgment cited by Mr.Thorat in the case of

Anathula Sudhakar (Supra) is concerned, the same is irrelevant for the

purpose of the present case.

ORDER

35. In the light of the aforesaid discussions, and for the aforesaid

reasons, the following Orders are passed:

a. Appeal is allowed.

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b. The impugned Order dated 8

th

September 2022

passed by the Court of Extra Joint Civil Judge (Senior

Division), Nashik, is set aside.

c. Pending the final hearing and disposal of Suit No.182

of 2019, the Respondents, their officers, servants and agents

are restrained from, in any manner acting on the Sale Deed

dated 24

th

July 2018 and/or creating any third party rights

and/or developing the suit property viz.(Survey No.32/2) CTS

No 1120 admeasuring about 3890 Sq.mts. situated at

Anandvali, Nashik.

d. In the facts and circumstances of the case, there will

be no order as to costs.

e. In the light of the disposal of this AO, all Interim

Applications are also rendered infructuous and are disposed of

as such.

[FIRDOSH P. POONIWALLA, J.]

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