YESHWANTRAO MARTANDRAO MUKANE Vs. KHUSHAL K BHATIA

JUDGEMENT

(1.) This appeal by original defendant No. 1 (since deceased and represented by his heirs) and original defendant No. 2 questions the decree made for permanent injunction restraining them from disturbing the possession of the plaintiff as far as the property "Sadanand Palace", outhouses and the land surrounding the said Palace otherwise than by due process of law.

(2.) Certain positions are not in dispute. The present suit was filed by the respondent-original plaintiff seeking the relief of injunction with regard to the said Palace as well as the agricultural lands numbering about eight, all situated at Ashagad, Mouje Aswe, Taluka Dahanu, District Thane. Although at the hearing of the appeal, the learned Counsel for the respondent-plaintiff submitted that the plaintiff pleaded any other type of legal possession, it is obvious from the plaint allegations that the plaintiff came to the Court alleging that there was an agreement for sale between the plaintiff and original defendant No. 1 (the original owner of the property), which was recorded on April 25, 1967. Under that agreement, it was the case of the plaintiff, the total considerations was Rs. 80,000/- and he paid earnest amount of Rs. 10,000/-. Pursuant to it and in part performance thereof, he was put in possession and thus has an equitable title under section 53-A of the Transfer of Property Act, 1882. As, however, original defendant No. 1 backed out of the said agreement and threatened to dispossess the plaintiff, the suit was filed. The plaintiff did not seek any relief to enforce that agreement of sale although by the time the suit was filed ten years had gone-by. The defence has been one of denial of the said agreement as well as the character of the possession and an assertion, in that the plaintiff was allowed permissively to occupy the premises and particularly for management of the properties under a Power of Attorney and on the date of the suit was not in possession. As even that Power of Attorney was duly, terminated, the original defendant No. 1, being the rightful owner on whose behalf the plaintiff was in possession, the defendant remains in possession and no relief of injunction could be decreed. It was also pleaded by original defendant No. 1 that he was a member of the Scheduled Tribe and thus the agreement, even if there be any, was not enforceable.

(3.) The last aspect of the pleading of original defendant No. 1 is a part of Issue No. 9 and the trial Court has answered the said issue in the negative by giving reasons in paragraph 13 of the judgment. Strictly speaking and as a matter of law, it must be observed that the issue did not arise nor could the same be answered in the manner as is done, because the plaintiff has admitted in his evidence that original defendant No. 1 belonged to the Scheduled Tribe.