1 wp5367.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5367 OF 2007
1] Deepak Bhagwan Vyas,
Aged adult, Occ. Business,
R/o. Near Govt. Dairy,
M. Khandala Road, Chikhali,
Tq. Chikhali, Distt. Buldana.
2] Anil Bhagwan Vyas,
`
Aged adult, Occ. Business,
R/o. Near Jaistambha Chowk,
Besides Shailesh Baheti's House.
Chikhali, Tq. Chikhali, Distt. Buldana
3] Ashok Bhagwan Vyas,
Aged adult, Occ. Business,
R/o. Opposite Dr. Mhetre's Hospital,
M. Khandala Road, Chikhali,
Tq. Chikhali, Distt. Buldana PETITIONER
Org. Defts
...VERSUS...
Prakash Bachcharaj Jailwal,
aged adult, Occ. Business,
R/o. Gandhinagar, Near Dr. Gupta's
Hospital, Chikhali,
Tq. Chikhali, Distt. Buldana....... RESPONDENT
Org.Pltff.
-------------------------------------------------------------------------------------------
Shri C.A.Joshi, counsel for petitioners.
Shri A.A.Naik, counsel for respondent
-------------------------------------------------------------------------------------------
CORAM: R. K. DESHPANDE, J.
th DATE : 26 OCTOBER, 2014 .
::: Uploaded on - 28/10/2015 ::: Downloaded on - 28/10/2015 23:59:51 ::: 2 wp5367.15.odt
ORAL JUDGMENT
1] Rule made returnable forthwith.
Heard the matter finally by consent of the learned counsels appearing for the parties.
2] In Special Civil Suit No. 24 of 2014 for specific performance of contract, the trial Court rejected the application at Exh.10 on 12.06.2015 for grant of temporary injunction restraining the defendants from disturbing the peaceful possession of the plaintiff over the suit property. In Misc. Civil Appeal No. 38 of 2015, preferred by the plaintiff, the lower appellate Court has set aside the decision of the trial Court on 15.07.2015 and the application at Exh. 10 has been allowed, granting injunction restraining the defendants from disturbing and interfering with the possession of the plaintiff over the suit property pending the decision of the suit.
3] The Court has to find out whether prima facie the plaintiff has proved his possession over the suit property.
The lower appellate Court has relied upon the agreement for extension of time executed between the parties on ::: Uploaded on - 28/10/2015 ::: Downloaded on - 28/10/2015 23:59:51 ::: 3 wp5367.15.odt 31.03.2011, 28.02.2012 and 28.02.2013, wherein a clause is contained to the effect that the plaintiff shall be at liberty take electric meter, water meter in his name in the suit property.
The lower appellate Court has also relied upon the Municipal Assessment for the year 2012-13 to 2015-16 indicating the name of the plaintiff as the occupant of the suit property and proprietor of a hotel namely "Gopal Tea House". The finding of fact recorded by the lower appellate is based on the evidence available on record. Though the trial Court has found that the plaintiff had failed to establish his possession, the lower appellate Court has reversed such finding. Being a possible view of the matter, no interference is called for in the order impugned.
4] Shri Joshi, the learned counsel appearing for the petitioners has urged that the lower appellate Court could not have relied upon the subsequent agreement dated 31.03.2011, 28.02.2012 and 28.02.2013 in view of the provision of Section 17 (1-A) of the Registration Act, 1908, and also provision of Section 53 of the Transfer of Property Act. He has relied upon the decision of the Apex Court in the case of Suraj Lamp and Industries Private Limited through ::: Uploaded on - 28/10/2015 ::: Downloaded on - 28/10/2015 23:59:51 ::: 4 wp5367.15.odt Director vrs. State of Haryana and another reported in (2012) 1 SCC 656. As against this, Shri Akshay Naik, the learned counsel for the respondent has relied upon the proviso to Section 49 of the Registration Act which makes the unregistered contract in a suit for specific performance of contract admissible in evidence and submits that it can be used as evidence of any collateral transaction not required to be effected by registered instrument.
5] The question as to whether the matter is covered by provision of Section 53-A of the Transfer of Property Act, so as to make the agreements in question inadmissible in evidence is required to be gone into by the Court on merits and it is not necessary for this Court to adjudicate on such controversy at this stage. The only fact which is required to be noted is that, the agreement dated 14.02.2011 on which the specific performance is sought does not contain the clause of possession, which is admitted by both the learned counsels appearing for the parties. The agreements relied upon by the plaintiff for the purposes of possession were executed on 31.03.2011, 28.02.2012 and 28.02.2013. The Courts have found prima faice the possession of the plaintiff ::: Uploaded on - 28/10/2015 ::: Downloaded on - 28/10/2015 23:59:51 ::: 5 wp5367.15.odt over the suit property, which does not call for any interference.
6] The lower appellate Court has not imposed any condition for grant of injunction. The total consideration agreed between the parties was of Rs. 6,11,000/-, out of which an amount of Rs.2,11,000/- is alleged to have been paid towards part consideration by the plaintiff to the defendants. The balance of Rs. 4,00,000/- remained to be paid. The plaintiff will have to, therefore, be put with a condition to deposit the amount of Rs.4,00,000/- in the trial Court within a stipulated period, which the trial Court shall keep in fixed deposit during the pendency of the suit in any Nationalized Bank.
7] In the result, the writ petition is partly allowed, confirming the order passed by the lower appellate Court granting injunction by allowing an application Exh. 10 subject to the condition that the plaintiff shall deposit the balance amount of consideration of Rs. 4,00,000/- in the trial Court within a period of two months from the date of first appearance of the parties before the trial Court. The parties ::: Uploaded on - 28/10/2015 ::: Downloaded on - 28/10/2015 23:59:51 ::: 6 wp5367.15.odt to appear before the trial Court on 16.11.2015. If the amount is not deposited within the stipulated period, the order of injunction shall stand vacated without reference to the Court.
If the amount is deposited, the trial Court shall pass appropriate order in respect of its disbursal or adjustment or withdrawal in accordance with its ultimate decision. No costs.
JUDGE Rvjalit ::: Uploaded on - 28/10/2015 ::: Downloaded on - 28/10/2015 23:59:51 :::