Bombay High Court
SIDDIQUI IRFANA OWES AHMADversusSOHEIL JAVED KHALILODDIN KAZI
- Disposal
- DISPOSED OFF
- Bench
- S G CHAPALGAONKAR
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.
...
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