Deppak S/O Bhagwan Vyas And 2 ... vs Prakash S/O Bachcharaj Jailwal
2015 Latest Caselaw 471 Bom

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                     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 .

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     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

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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

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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

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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

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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