ANANTHARAO NAIK V Vs. BH RAJAIAH

JUDGEMENT

(1.) In this CRP., the order passed by the learned Munsif Magistrate, Vinukonda dated 29-7-1993 in CFR No. 1536/93 in an un-numbered suit filed by the petitioner herein is questioned.

(2.) The suit was filed for a permanent injunction restraining the defendant and his men from intefering with the plaintiff's peaceful possession and enjoyment of the plaint schedule land. According to plaint averments, the defendant entered into an agreement of sale in respect of the plaint 'schedule land on 30-7-92 and put the plaintiff in possession on the same date after receiving the entire balance of sale consideration. Thereafter, the petitioner has been raising crops and remained in effective possession of the land. The petitioner-plaintiff further alleged that the defendant and his men were trying to interfere with his possession. Hence the suit was filed.

(3.) It is stated in the plaint that the suit is passed on possessory title of the plaintiff and the plaintiff reserves his right to file a suit for specific performance of contract. In the impugned order, the learned Munsif Magistrate relied upon the judgment of this Court in Mohd. Jahangir vs. Mallikharjuna Co-op. Housing Society Ltd., and held that a suit for bare permanent injunction without seeking for specific performance of contract does not lie. The concluding part of the order reads: "Hence the plaintiff is directed to file the suit for specific performance of the contract and return the plaint for complying the same." The learned Counsel for the petitioner questioned the correctness of the view taken by the lower Court that a suit for injunction does not lie in the absence of aprayer for specific performance. The learned Counsel has argued that it is a well-settled position that a vendee under an agreement of sale can protect his possession as against the vendor and when his possession is sought to be disturbed by the vendor, it is open to him to file a suit for injunction. Omission to sue for specific performance is not fatal to the maintainability of the suit for permanent injunction. The learned Counsel has relied upon the decisions of this Court in Saraswathi vs. Venkata Subbarao and Achayya vs. Venkata Subbarao. It is contended that in the judgment relied upon by the lower Court, the learned Judge merely expressed a prima facie view while refusing to grant interim injunction and the legal position settled in various other decisions ought not to have been ignored by the lower Court Suffice it to observe that the contention advanced by the learned Counsel for the petitioner is not without force. However, in the view I am taking, it is not appropriate to express my final opinion in this regard.