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Bombay High Court

SIDDIQUI IRFANA OWES AHMADversusSOHEIL JAVED KHALILODDIN KAZI

Disposal
DISPOSED OFF

Holding

The lease agreement executed by an unauthorized power of attorney holder does not confer lawful possession, and the injunction granted against the true owner is unsustainable.

Summary

The petitioner, a purchaser of a one‑third share in a land owned by three brothers, challenged a temporary injunction that barred him from taking possession of the suit property. The respondent claimed possession based on a 1997 lease agreement allegedly executed by a power of attorney holder of one co‑owner, Zahir Khan, and sought a perpetual injunction. The court examined the scope of the power of attorney, finding it did not authorize the holder to lease the land or transfer possession, and noted that the lease was unregistered and had expired. Revenue records and earlier litigation did not establish the respondent’s settled or lawful possession. Consequently, the court held that the lower courts erred in granting the injunction and allowed the writ petition, disposing of the matter in favor of the petitioner.

Issues considered

  • Whether a lease executed by a power of attorney holder without authority confers lawful possession on the lessee.
  • Whether the respondent can obtain temporary or perpetual injunction against the true owner when his possession is not lawful.
  • Whether revenue records and prior litigation establish settled possession sufficient for injunctive relief.
  • Whether the scope of the power of attorney permits leasing of the property.

Subjects

  • injunction
  • lease agreement
  • power of attorney
  • settled possession
  • temporary injunction
  • perpetual injunction
  • property law
  • civil suit
  • due process

Judgment

2026:BHC-AUG:23694


                                                  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
                               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 4 th 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


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