MATHURABAI KADU KOLI Vs. ROOPCHAND LALJI KOLI

JUDGEMENT

(1.) THE main question which is raised in this Civil Revision Application by the petitioners is whether the suit simpliciter for injunction is maintainable on the basis of the possession which is acquired by the plaintiff under section 53-A of the Transfer of Property Act, without filing a suit for specific performance of the contract and in such a suit, whether application for temporary injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure is tenable.

(2.) THE facts in brief are as under. Regular Civil Suit No. 632 of 1988 has been filed by the plaintiff/respondent No. 1 in the Court of the Civil Judge, Junior Division, Jalgaon claiming a perpetual injunction as against the petitioners and the respondent No. 2 i. e. defendants in respect of the Survey No. 708/11, which is now part of Gat No. 2311. There were three brothers, namely Kadu, Manga and Onkar. Manga and Onkar are defendants No. 3 and 4. Kadu had expired and Mathurabai and Devidas are respectively wife and son of Kadu, who are defendants No. 1 and 2. Deceased Kadu and defendant No. 3 Manga were having 1/3rd share and their 1/3rd share they agreed to sell to the plaintiff by an agreement to sell on 1-11-1978 for consideration of Rs. 1,000/ -. The entire amount of Rs. 1,000/- was paid and that the plaintiff/respondent No. 1 claims that he is cultivating the said land since the day of agreement. It is further alleged that on 16th September, 1988, there was an obstruction and, therefore, the suit was filed for perpetual injunction and in the said suit the application at Exh. 6 was submitted for temporary injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure. The Trial Court rejected the said application. The said order was challenged by the plaintiff/respondent No. 1 by filing Misc. Civil Appeal No. 19 of 1989. Said appeal was decided by the 3rd Additional District Judge, Jalgaon on 6th December, 1989. Appeal was allowed and temporary injunction was issued against the defendants No. 1 to 3 i. e. the petitioners. Said order is challenged by this Civil Revision Application.

(3.) THE learned Counsel Shri Bora, appearing for the petitioners submitted that the suit filed by the respondent No. 1 is a simpliciter suit for injunction, when in fact, the plaintiff/respondent No. 1 should have filed a suit for specific performance of agreement and in the said suit should have claimed a perpetual injunction. He submitted that when the plaintiff gets possession of the land by way of an agreement to sell i. e. in part performance of agreement, then in that eventuality the moment that possession is obstructed, it amounts to breach of agreement to sell and, therefore, the proper remedy for the plaintiff is to file a suit for specific performance of a contract and perpetual injunction. Suit simpliciter for perpetual injunction without claiming any relief of a specific performance is not tenable. He relied upon 1986 (1) Bombay Cases Reporter 533 (Yeshwantrao v. Khushall), and 1988 (4) Bom. C. R. 60 : 1988 Mh. L. J. 55 (Hussain Khan v. Shaikh Ahmed ). He further submitted that the law laid down in 1987 (2) Bom. C. R. 640 : A. I. R. 1988 Bombay 296 (Laxman v. Pandharinath), is not a good law. He submitted that if such a suit is not maintainable, then in that eventuality, the interim application for temporary injunction or any other interlocutory application in the said suit will not be tenable.