Mubarik Shah v. Nilophar Through Special Power Of Attorney Holder Rahab Miyan

IN THE HIGH COURT OF MADHYA PRADESH

AT INDORE

FA No. 868 of 2025 (MUBARIK SHAH Vs NILOPHAR THROUGH SPECIAL POWER OF ATTORNEY HOLDER RAHAB MIYAN

AND OTHERS )

Shri Piyush Shrivastava - Advocate for the petitioner. Shri Sachin Subnis, learned counsel for the respondent [CAVEAT].

HEARD ON : 25.09.2025

DELIVERED ON : 19.11.2025

Heard on I.A.No.4860/2025, an application under Order 41 Rule 5 read with Section 151 of CPC for grant of stay.

2. Counsel contend that no valid sale occurred in favor of the respondent or her husband since the they lacked funds to pay the consideration; thus, the registered sale deed is void for want of consideration. The respondent No.1's husband, acting as power of attorney holder of the original owner (Iqbal Lokhandwala), had no authority to execute a sale deed in favor of his own wife. No possession was ever delivered to the husband or his wife. On 14.09.2012, Iqbal Lokhandwala executed a mortgage deed in favor of petitioner for Rs.15,00,000 and handed over possession. Iqbal Lokhandwala admitted that Rahab Miya /respondent no.1's husband illegally used the power of attorney to execute a forged sale deed without consideration. Iqbal then revoked the earlier power of attorney, issued a fresh one in favour of the petitioner, and through him filed a suit for cancellation of the sale deed. However, Iqbal collusively compromised with the respondent no.1, leading to dismissal of the cancellation suit. The

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petitioner asserts that he has been in continuous possession since the mortgage and prayed for dismissal of the respondent no.1 suit. Despite this, the Trial Court decreed the suit filed by respondent no.1 vide Judgment & Decree dated 26.04.2025. Aggrieved, the petitioner has preferred the present appeal.

3. Counsel further contended that the Trial Court erroneously held that Iqbal Lokhandwala executed a power of attorney in favour of Rahab Miya, who then sold the suit property to Respondent No. 1 on 21.02.2012 for consideration. In fact, the petitioner acquired the property via a mortgage by delivery of possession (Ex. DA), receiving Rs.15 lakhs and physical possession. The Court ignored the impounded agreement (Ex. DA), with only stamp duty penalty pending before the Commissioner. The registered sale deed by Rahab Miya (as PoA) to his wife Nilofar is void for want of consideration, as no payment evidence was adduced. Further, the decree of mesne profits is illegal, being passed without mandatory enquiry under Order

20 Rule 12 CPC in the absence of evidence.

4. Counsel relied upon the judgments of the Hon'ble Supreme Court in Rajaram Prasad Gupta & Anr. vs. Ramchandra Prasad & Ors., (2008) 10 SCC 796 and Mool Chand Yadav & Anr. vs. Raza Buland Sugar Co. Ltd., Rampur & Ors., [(1982) 3 SCC 484], wherein the Court held that a judicial approach requires suspension of an order having serious civil consequences during the pendency of an appeal. It was further observed that where the subject matter of the suit is residential premises and the judgment-debtor is residing therein, the prayer for stay is ordinarily granted. Counsel also

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placed reliance upon the case of Shiv Kumar Sharma vs. Santosh Kumari, [(2007) 8 SCC 600] with regard to the necessity of paying requisite court fees and the case of Malluru Mallappa (D) thr. LRs. vs. Kuruvathappa and Ors., (Civil Appeal No. 1485/2020, order dated 12.02.2020) wherein Hon'ble Supreme Court emphasized the importance of a comprehensive and reasoned judgment in the first appeal, which is a valuable right of the parties and a continuation of the original trial.

5. Counsel contended that the petitioner/defendants are in peaceful possession of the suit house for a long time by virtue of a mortgage deed executed by the original owner in their favour. If the impugned judgment and decree are executed, the purpose of filing the instant appeal would be frustrated, and the instant appeal would become infructuous. In these circumstances counsel prayed that the present application be allowed and the execution & operation of the impugned judgment & decree dated 26.04.2025 passed by the Trial Court be stayed, in the interest of justice.

6. Per contra, counsel for the respondent submitted that Rahab Miyan (GPA holder) sold the disputed house to his wife (Respondent No. 1) on 21.02.2012 for a consideration of Rs.17,60,000/- (which she received from her father) and delivered possession. She applied for mutation. Iqbal Lokhandwala raised a false objection due to misinformation about the plaintiff's adjacent property. Upon clarification by Respondent No. 1's husband, Iqbal withdrew the objection via affidavit. Consent letters from co- owners Rashida B and Zubaida B were obtained, documents handed to the respondent no.1's husband, and mutation was completed in Respondent No.

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1's name in municipal records.

7. Counsel further contended that Iqbal Lokhandwala, in his examination-in-chief, admitted that he had received the entire sale consideration from Rahab Miyan; therefore, no third party has any right to challenge the sale deed on the ground of non-receipt of consideration. He further admitted that Petitioner Mubarik Shah and Respondent No. 2 Bhura Shah had called him over the phone and given false information that Rahab Miyan was transferring Iqbal's other property adjacent to the suit property. However, when the true facts were clarified, the objection filed by Iqbal was withdrawn. Iqbal further deposed that Mubarik Shah and Bhura Shah again contacted him over the phone and informed him that he had sold the property for a lower consideration, whereas the property was actually worth ₹30-35 lakhs. Being in urgent need of money for his daughter's marriage, Iqbal came to Shujalpur and filed a suit against Respondent No. 1 and her husband. When Rahab Miyan inquired into the matter, Iqbal's conscience was pricked; he appeared before the Court and gave clear testimony regarding the actual facts. The petitioner himself had admitted during his examination-in-chief and cross-examination that Iqbal Lokhandwala was the owner of the disputed house and had the absolute right to sell it to anyone he chose. Under these circumstances, counsel prayed that no case is made out for grant of stay and the application be dismissed with costs.

8. I have heard the counsel for the parties and perused the record.

9. Iqbal Lokhandwala's own deposition categorically admits receipt of full consideration of ₹17,60,000/- from Rahab Miyan and voluntary

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withdrawal of his objection after affidavit. He further admits that the subsequent suit for cancellation was filed under misrepresentation by the present petitioner and respondent No. 2 and was collusively compromised. The mortgage deed dated 14.09.2012 (Ex. DA) relied upon by the petitioner is posterior to the registered sale deed and does not create any title superior to a prior registered conveyance. The mortgagee's possession, if any, is permissive and subordinate to the absolute owner (respondent No. 1). The appellant's plea of non-payment of consideration stands belied by Iqbal's sworn testimony and the recitals in the sale deed. No cogent evidence of fraud or forgery has been placed on record to displace the presumption under Section 114(e) of the Evidence Act. The impounded agreement, even if admitted after payment of penalty, cannot override a prior registered sale deed between the same parties qua the same property.

10. The respondent No. 1 is the registered owner in municipal records since 2012 and has been in possession since the date of sale. The petitioner's alleged possession under a mortgage cannot frustrate the decree of possession. Execution of the decree will restore the respondent to her lawful ownership, however, refusal of stay will only prolong illegal occupation. The petitioner has failed to deposit mense profits as directed under Order XX Rule 12 CPC, rendering his prayer for discretionary stay inequitable. The registered sale deed dated 21.02.2012 (Ex. P-1) executed by Rahab Miyan (as GPA holder of Iqbal Lokhandwala) in favour of his wife Nilofar (respondent No. 1) is presumed valid under Section 54 of the Transfer of Property Act and Sections 16 & 17 of the Registration Act.

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(ALOK AWASTHI)

JUDGE

11. The judgments cited by the Counsel for the appellant Rajaram Prasad Gupta (Supra) and Mool Chand Yadav (Supra) mandate stay only where serious civil consequences flow and prima facie case is strong. Here, the appellant has no prima facie case. Shiv Kumar Sharma (Supra) emphasizes payment of court fees—the appellant has complied, but that alone does not entitle him to stay. In this case, the testimony of Iqbal is a striking example of the changing nature of human behavior. Initially, driven by greed, he denied the sale of house to respondent no.1 however, when his conscience awakened, he appeared in the Court, even while ill and gave a clear testimony regarding the actual circumstances. This makes it clear that no matter how greedy a person may be, his conscience will eventually awaken and help him getting closer to the truth. This Court finds no error apparent in the Trial Court's findings on title and possession. The appellant has failed to make out any prima facie case, for stay at this stage. The application appears to be a device to delay execution execution proceedings.

12. Accordingly, I.A.No.4860/2025 is hereby rejected. Vindesh

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