SAINATH BUILDERS Vs. NAGINBHAI PREMJIBHAI SOLANKI

JUDGEMENT

(1.) PRESENT Appeal from Order has been filed by the appellantsoriginal plaintiffs being aggrieved by the impugned order passed below application for injunction in Special Civil Suit No.48/2010 by 2nd Additional Principal Sr. Civil Judge, Navsair dated 30.07.2011 on the grounds stated in the memo of Appeal from Order.

(2.) HEARD learned counsel, Shri B.S. Patel for the appellants and learned counsel, Shri Navin Pahwa for the respondent no.1.

(3.) LEARNED counsel, Shri B.S. Patel therefore strenuously submitted that when as per Section 53A of the Transfer of Property Act, in part performance of the agreement to sell, the land in question has been put in possession of the appellant no.1Sainath Construction; further development has been made, the injunction could not have been refused. He submitted that the possession is an important aspect and substantial consideration has been paid. He has also referred to the sale deed dated 04.02.2011 in favour of the appellant no.1firm and submitted that this sale deed is not challenged by any one and the possession is with the appellants. He submitted that if the injunction as prayed for is not granted and the respondents are carrying on the construction, it would cause prejudice to the rights of the appellants. He has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Gangubai Babiya Chaudhary & Ors. Vs. Sitaram Bhalchandra Sukhtankar & Ors., reported in AIR 1983 SC 742 as well as judgment in case of Ashwinkumar K. Patel Vs. Upendra J. Patel & Ors., reported in (1989) 3 SCC 161.