VINUBHAI SHAMJIBHAI PATEL Vs. MANGUBEN BALVANTBHAI PATEL

JUDGEMENT

(1.) The appellant herein is the original plaintiff of Special Civil Suit No. 74 of 2001. The aforesaid suit has been filed by the plaintiff for getting a decree for specific performance of the suit agreement and for permanent injunction. The case of the plaintiff is that defendants No. 1,2 and 3 are the owners of the suit property situated at village Singanpore bearing Revenue Survey No. 71, Final Plot No. 43A in T.P. Scheme No. 25. The plaintiff and defendants No. 1,2 and 3 entered into an agreement for sale on 18th March 2000 and at the time of executing the agreement to sale, possession was handed over to the plaintiff.

(2.) The case of the plaintiff is that he has paid the full consideration of Rs.12,08,816/ and in that view of the matter, the defendants have also handed over physical possession of the disputed land to the plaintiff. According to the plaintiff, the defendants tried to back out from the agreement to sale by not executing the sale deed and therefore the plaintiff filed a suit for specific performance of the suit agreement and in the said suit, an application for interim injunction was also pressed into service by the plaintiff. By way of interim injunction it was prayed that during the pendency of the suit, the respondents may be restrained from acting in any manner which may prejudice the rights of the plaintiff for getting decree of specific performance of the suit agreement. It is the case of the plaintiff that the said agreement entered into by defendants No. 1,2 and 3 was on behalf of all the family members and that the agreement is executed by Karta of the joint family. The learned trial Judge initially granted adinterim injunction. However, subsequently, by an order dated 08.08.02, the injunction was vacated on the ground that the land is agricultural land, and in view of section 43 of the Bombay Tenancy & Agricultural Lands Act, [hereinafter referred to the Tenancy Act], the agreement to sale could not have been entered into and therefore, the plaintiff is not entitled to protection of the possession of the land. The plaintiff has, therefore, filed this Appeal from Order challenging the said order.

(3.) Mrs. Mehta, learned advocate appearing for the appellantoriginal plaintiff has relied upon certain documents forming part of the proceedings. It is submitted by her that the suit is not resisted by the defendants by filing written statement and the application for interim injunction was also not resisted by filing any reply. She further submitted that in any case, during the pendency of the suit, the disputed property was required to be protected and it is for the Revenue authorities, and not the Civil Court in the present proceedings, to consider whether there is any breach of the Tenancy Act or not. She further submitted that in the facts and circumstances of the case, the defendants cannot be permitted to transfer or alienate the suit property during the pendency of the suit.