Kamalaben Babulal Karnavat vs State Of Gujarat & 10

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1425 of 2013 In SPECIAL CIVIL APPLICATION NO. 7238 of 2013 With LETTERS PATENT APPEAL NO. 1426 of 2013 In SPECIAL CIVIL APPLICATION NO. 7239 of 2013 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE A.G.URAIZEE ===========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

================================================================ KAMALABEN BABULAL KARNAVAT Appellant(s) Versus STATE OF GUJARAT & 10 Respondent(s) ================================================================ Appearance:

SHIVANI RAJPUROHIT, ADVOCATE for the Appellant(s) No. 1 MR. HARSHEEL SHUKLA, AGP for the Respondent(s) No. 1 - 5 MR DHAVAL N VAKIL, ADVOCATE for the Respondent(s) No. 8 , 10 - 11 MR MEHUL S SHAH, ADVOCATE for the Respondent(s) No. 6 - 7 MR NIKHIL S KARIEL, ADVOCATE for the Respondent(s) No. 9.3 MR PADMRAJ K JADEJA, ADVOCATE for the Respondent(s) No. 9.1 - 9.2 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and

HONOURABLE MR.JUSTICE A.G.URAIZEE

Date : 08/04/2015 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI)

1. The present appeals have been filed under Clause 15 of the Letters Patent by the appellants­original petitioners against the common order dated 18.04.2013 passed by the learned Single Judge of this Court in Special Civil Application Nos.7238 of 2013 and 7239 of 2013, whereby the learned Single Judge has dismissed the petitions.

2. Learned advocate for the appellants submitted that the learned Single Judge has committed an error in dismissing the writ petitions as the identical matter being Special Civil Application No. 6708 of 2013 has been admitted by another Single Judge of this court. She, therefore, requested this Court to remand this matter before learned Single Judge.

2.1. Learned advocate for the appellants further submitted that the learned Single Judge has committed an error in not appreciating the fact that at the time when the sale deed was executed by the power of attorney holder in favour of the respondent Nos. 6 and 7, the order of status quo was in operation.

3. On the other hand learned advocate for the respondents has supported the impugned order passed by the learned Single Judge and submitted that the learned Single Judge after appreciating the material on record has passed the impugned order. Therefore, he urged that this Court may dismiss these appeals.

4. We have heard learned advocates appearing for the parties and perused the material on record. While dismissing the writ petitions, the learned Single Judge in paragraph Nos. 7 to 11 has observed as under:­ “7. It is in the backdrop of the aforesaid facts, that the above findings recorded by the revisional authority are required to be examined. A perusal of the record of the case reveals that Jalbhai Manekji Siganpuriya had, in fact, executed a power of attorney in favour of Sorabji Nadirsha Ankleshwariya. Though it has been contended on behalf of the petitioner that the said power of attorney had been cancelled, all that is brought on record is a deed stated to be executed in December, 2004 before a Notary purporting to cancel the power of attorney dated 30th June, 1999 which had been executed by Jalbhai Manekji Siganpuriya in favour of Sorabji Nadirsha Ankleshwariya before an Executive Magistrate. However, no further evidence has been brought on record to show that Jalbhai Manekji Siganpuriya had issued any notice to the power of attorney holder stating that the power of attorney executed by him in his favour had been cancelled or that any public notice as regards revocation of the power of attorney had been published so as to caution third parties from entering into any transactions with the power of attorney holder on the basis of such power of attorney. Sections 201 to 210 of the Indian Contract Act, 1872 provide for “Revocation of Authority” of an agent. Insofar as the facts of the present case are concerned, section 208 thereof would be relevant. Section 208 of the Contract Act provides that the termination of the authority of an agent does not, so far as regards the agent, take effect before it becomes known to him, or, so far as regards third persons, before it becomes known to them. Thus, to establish that the power of attorney had been revoked, the petitioner has to prove that the agent viz. Sorabji Nadirsha Ankleshwariya was aware of the termination of his authority under the power of attorney and that the third parties who purchased the subject land had knowledge about such revocation. In the present case, as noticed earlier, except for producing the above purported deed of cancellation, no other evidence has been brought on record to show that the requirements of section 208 of the Contract Act stood satisfied. Evidently, therefore, the petitioner has failed to establish that the said power of attorney has been duly revoked. In the absence of any valid revocation of the said power­of­attorney, it cannot be said that the registered sale deed executed on the basis of such power of attorney is not valid. The revenue authorities were, therefore, duty bound to make corresponding mutation entry on the basis of the registered sale deed and therefore, mutation entry No. 24835 had rightly been certified. While making a mutation entry the scope of enquiry that can be carried out by the revenue authorities is limited. The revenue authorities cannot enter into the question as regards the validity or otherwise of a power­of­attorney produced before it. In a given case if facts reveal that it has been duly established before the revenue authorities that the previous power­of­attorney had been revoked in accordance with law, the sale deed based on such power of attorney may not be accepted. However, in the absence of any evidence on record to establish that the power­of­ attorney has been duly revoked and the power of attorney holder had due notice of the same, the sale deed executed by the power of attorney would be required to be accepted. The contention that the sale deed was executed on the basis of a power of attorney which stood cancelled, therefore, does not merit acceptance.

8. As regards the contention that the sale deed could not have been executed in the light of the interim injunction granted by the civil court in Regular Civil Suit No.243/1999, a perusal of the order passed by the civil court reveals that what was prayed for before the court was to restrain the defendants therein from acting upon the will which was subject matter of challenge and prohibiting them from removing the plaintiffs therein from the possession of the disputed land. In its operative order, the court had partly allowed the Exhibit­5 application and had directed that the parties shall maintain status quo with respect to the properties in question in terms of the map submitted by the Court Commissioner. On a conjoint reading of the relief claimed in the Exhibit­5 application and the final order, it is apparent that what was prayed for was to restrain the defendants from acting upon a will and from disturbing the possession of the plaintiffs. The order of the civil court, therefore, did not prohibit the parties from executing any sale deeds or alienating the subject lands. Under the circumstances, the contention that in the light of the order of the civil court, the sale deed could not have been executed also does not merit acceptance.

9. The learned counsel for the petitioner has placed reliance upon the decision of this court in the case of Jhaverbhai Savjibhai Patel vs. Kanchanben Nathubhai Patel (supra) for the purpose of contending that while making the mutation entry, an endorsement should be made that the same would be subject to the final outcome of the civil litigation. In this regard, from the facts as noted hereinabove, it is apparent that the civil suit which came to be instituted by Jalbhai Manekji Siganpuriya was disposed of as having abated in view of the fact that he had expired. It appears that subsequently, a miscellaneous appeal has been filed challenging the said order, which is still pending. However, it cannot be said that as on date, any proceeding is pending against the respondents No.6 and 7 so as to necessitate any such endorsement being made in the record of rights.

10. In the light of the aforesaid discussion, the findings recorded by the revisional authority being in consonance with the settled legal position, this court does not find any infirmity in the impugned order passed so as to warrant interference. The petitions, therefore, fail and are summarily rejected.

11. It is clarified that any observations made in this order are only for the purpose of deciding the controversy in issue before this Court and the same shall, in no manner, prejudice the cause of the petitioner in any other proceeding pending in any other court.”

5. Having carefully gone through the discussions made by the learned Single Judge, we are of the considered opinion that the learned Single Judge has, for cogent reasons, dismissed the writ petitions. We do no find any illegality in the impugned order passed by the learned Single Judge. Apart from that the learned advocate for the appellants has not been able to contradict the findings arrived at by the learned Single Judge. Hence, we are in complete agreement with the view taken by the learned Single Judge

6. In that view of the matter, we are of the considered opinion the learned Single Judge is completely justified in dismissing the writ petitions. Therefore, in our view, it will not be appropriate to disturb the findings recorded by the learned Single Judge. Hence, the present appeals are dismissed. We clarify that this order is passed only for the fiscal purpose and the same will not establish any right or title in favour of any of the parties. The rights and titles of the parties is subject to civil suits or civil titles pending before any other Court.

(K.S.JHAVERI, J.) (A.G.URAIZEE,J) pawan