1 wp 8428.2025.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8428 OF 2025 Siddiqui Irfana Owes Ahmad, age 59 years, Occ. Agriculturist and Medicine R/o 303/304, Khan Manjil, Ground Floor, ABS Road, Opp. Indian Oil Petrol Pump, B.K.C., Kurla (W), Mumbai – 70 Petitioner/ Orig. Defendant VERSUS Soheil Javed Khaliloddin Kazi, age 55 yrs, Occ. Agriculture, R/o Kaziwada, Jamner, Tq. Jamner, District. Jalgaon. Respondent (orig plaintiff) ... Advocate for Petitioner : Mr.P. R.Katneshwarkar Senior Counsel i/g Ms. K.K. Varma Advocate for Respondent : Mr. S.S. Kazi … CORAM : S. G. CHAPALGAONKAR, J. Dated : June 17, 2026 FINAL ORDER :- 1. Present writ petition takes exception to the order dated 28.4.2025 passed by the learned District Judge, Jalgaon in Misc. Civil Appeal No.56 of 2024, thereby upholding the order dated 16.11.2024 passed by the learned Civil Judge J.D. Jamner, below Exhibit-6 in Regular Civil Suit No.176 of 2023, whereby the petitioner/original defendant is injuncted from 2026:BHC-AUG:23694 2 wp 8428.2025.odt causing obstruction in possession of respondent/plaintiff over the suit land. 2. Respondent/plaintiff instituted Regular Civil Suit No.176 of 2023 against the petitioner seeking decree of perpetual injunction contending that on the basis of lease agreement of the year 1997 he is in possession over the suit property which is owned by three brothers namely Zahir Khan Umar Khan, Kabir Khan Umar Khan and Bashir Khan Umar Khan. It is contention of respondent that he developed suit property by digging well and installing electric motor pump. Mr. Anwar s/o Kabir Khan has executed sale-deed of 1/3rd share in the suit property in favour of petitioner/defendant, who is trying to evict the respondent without following due process of law. Hence, he filed the suit seeking relief of permanent injunction alongwith application below Exhibit-6 for temporary injunction. 3. Petitioner/defendant filed written statement contending that respondent has no right to file the suit against him. The respondent had previously filed suit bearing Regular Civil Suit No.124 of 2015 in respect of the same property against original owners. Same is pending. Respondent/plaintiff is relying 3 wp 8428.2025.odt upon so-called lease-deed executed by Mr.Muzafar Iqbal, which is not a registered document. Further, Mr. Muzafar Iqbal Kazi who claims to be the power of attorney holder of one of the co- owner i.e. Zahir Khan had no authority to lease the land in favour of respondent. Even, co-owner Mr. Zahir Khan had no authority to execute the power of attorney in respect of entire suit property in favour of Muzafar Iqbal. In the earlier suit, respondent claimed himself as tenant and in the present suit he is claiming the right as lease holder on the basis of agreement to lease. 4. The application seeking temporary injunction in the suit below Exhibit-6 came to be allowed by the Trial Court vide order dated 16.11.2024 thereby retraining the petitioner from interfering in possession of the respondent over the suit property. Aggrieved petitioner filed Misc. Civil Appeal No.56 of 2024 before the learned District Judge, Jalgaon, who affirmed the order of trial court while dismissing petitioner's appeal. 5. Heard learned advocates appearing for the respective parties. Perused record and orders impugned. 6. Apparently, respondent filed suit seeking decree of perpetual injunction against petitioner asserting his possession 4 wp 8428.2025.odt on the basis of a lease agreement, which is alleged to have been executed by power of attorney holder of Mr. Zahir Khan Umar Khan. Undisputedly, suit property was owned by three brothers i.e. Zahir Khan Umar Khan, Kabir Khan Umar Khan and Bashir Khan. According to respondent/plaintiff Zahir Khan Umar Khan had executed general power of attorney in favour of Muzzafar Kazi to look after suit property in all respect and on the basis of that power of attorney, Muzzafar Kazi leased out the suit property in favour of the plaintiff under lease agreement dated 4.9.1997. Since then, he is in possession of the suit property. Respondent is also relying upon a document dated 28.2.2002 alleged to have been executed by Zahir Khan. 7. Both the Courts prima facie arrived at opinion that respondent is in a settled possession of the suit property, therefore, unless he is evicted by following due process of law, he is entitled for protection of possession. Undisputedly, respondent has previously filed Regular Civil Suit No.124 of 2015 before learned Civil Judge J.D. against true owners seeking relief of perpetual injunction from disturbing his possession and declaration that he is in legal possession of the suit property as a tenant. In that suit also he claims his right 5 wp 8428.2025.odt on the basis of agreement executed by the power of attorney holder of Zahir Khan. In that suit, he has not pressed prayer for temporary injunction. 8. Copy of power of attorney and lease agreement along with 7/12 extract appears to have been placed on record as per permission granted by the appellate Court vide order passed below Exhibit-8. A close look to the power of attorney shows that Muhammad Zahir Khan, who was residing in United States of America was unable to supervise and safeguard his property in India and, therefore, he wanted to appoint someone as lawful attorney to protect his right and interest over the properties. Accordingly, he executed power of attorney for specific purpose giving authority in the name of Mr.Qazi Muzaffar Iqbal. From stipulations in the power of attorney, it is not discernible that power of attorney holder was given authority to transfer, lease or create third party interest in the property. He was authorized to take positive steps to protect interest of landowner against the encroachers, trespasser or illegal occupants. Obviously, on the basis of said power of attorney holder, he could not have executed lease in favor of third person and handed over possession thereof to anyone. Therefore, respondent/ plaintiff cannot claim his 6 wp 8428.2025.odt lawful possession over suit property on the basis of so-called lease agreement executed by Qazi Muzaffar Iqbal. Even from lease agreement dated 4th September 1997, it can be observed that lease agreement was executed for the period of 11 years from 4th September, 1997 and there is no further renewal of lease after expiry of term of 11 years. Admittedly, lease agreement being unregistered document could not have been relied for any purpose. 9. Pertinently in Regular Civil Suit No.124 of 2015, relying upon same set of documents, respondent/plaintiff has sought decree of perpetual injunction against owners of land in which till this date he could not secure an order of temporary injunction and there is no progress in the suit. The present suit is filed against petitioner/defendant who is purchaser of share of land from one of the co-owner under registered document. Therefore, it was incumbent upon respondent/plaintiff to show better right to be in possession. The documentary evidence relied upon by respondent nowhere suggests existing right in his favor to claim injunction, particularly, as against true owner. 7 wp 8428.2025.odt 10. Both the Courts appears to have been impressed by the revenue record that suggests that respondent/plaintiff was found in possession of suit property for the period from 2004 to 2015. It appears that there was a litigation as regards to revenue entry and at the time of institution of present suit, there was nothing to indicate that respondent/plaintiff was in possession over suit property. So-called spot inspection carried by revenue authorities on 14-11-2022 cannot be accepted as gospel truth to accept respondent/plaintiff’s possession. 11. It is true that even encroacher in a settled possession of a property cannot be evicted without following due process of law, and in such case, even injunction can be clamped against true owner. However, on the basis of so-called lease agreement executed by power of attorney holder, who had no authority to execute such lease, respondent/plaintiff cannot set up his claim regarding lawful possession. The power of attorney was given by one of the co-owner to protect his interest from encroachment over the land. In this backdrop, if power of attorney holder has acted beyond power of attorney or beyond the scope of power of attorney and executed a document of lease in favor of respondent/plaintiff, he cannot assume lawful 8 wp 8428.2025.odt possession. In the aforesaid backdrop, it can be assumed that power of attorney holder was not in possession of the property nor he had authority to put respondent/plaintiff in possession thereof. 12. In case of Ramrameshwari Devi vs. Nirmala Devi reported in (2011) 8 SCC 249, Supreme Court in paragraph no.43 has observed that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, Courts have to ensure that there is no incentive or motive for uncalled litigation. If plaintiff could not make out prima facie case to demonstrate his right or settled possession, he cannot seek injunction against true owners. Similarly, this Court in case of Mulji Umershi Shah and others Vs. Paradisia Builders Pvt Ltd. And others reported in 1997 (3) Mh.L.J. 532, observed in paragraph no.11 as under :- “11. In the suit for perpetual injunction the Court, may be called upon to hold inquiry in the, right, interest or status, as the case may be, of the plaintiff to find out whether plaintiff is entitled to protection of his possession by decree of injunction. The same consideration, prima facie, is required to be seen while considering an application for temporary injunction. The question of possession presupposes lawful possession and for adjudication of that question whether finally or at interlocutory stage, the inquiry into title, right, interest or status of plaintiff is not foreign to the subject matter.” 9 wp 8428.2025.odt 13. The revenue entries relied upon by respondent/plaintiff are insufficient to demonstrate his settled possession over the suit property. On the other hand, petitioner holds registered sale-deed executed by true owner with stipulation of handing over of possession. This Court finds that both the Courts below did not bother to look into contents of document relied upon by respondent/plaintiff and mechanically formed opinion regarding settled possession of plaintiff and granted temporary injunction against purchaser from the true owner, particularly, when in the earlier suit filed in the year 2015 against true owners, petitioner could not secure order of temporary injunction. Instead of adding petitioner as party to the pending suit, he filed independent suit alongwith application for temporary injunction claiming relief of perpetual injunction without seeking declaration of his right to remain in possession. In the aforesaid factual and legal backdrop, this Court finds that orders impugned cannot be sustained in law. Hence, writ petition is allowed in terms of prayer clause ‘B’ and disposed of. ( S. G. CHAPALGAONKAR ) Judge. ... aaa/-f