SHAMSHER Vs. RUSTAM

JUDGEMENT

(1.) Heard learned counsel for the parties. The plaintiff-appellant instituted a suit for specific performance on the basis of sale deed dated 12th July, 1985 and prayed that the sale deed may be got registered and the defendants may be directed to get it verified. In the sale deed, there is a reference that the possession of the disputed land has been delivered to the purchaser.

(2.) The purchaser plaintiff-appellant moved an application under O.39, Rr. 1 and 2 C.P.C. that an injunction may be issued prohibiting the defendants-respondents not to interfere with their lawful possession. The learned court below considering the provisions of S.37 and the decision of the Madras High Court in a case of Krishnamoorthy v. Paramasive, AIR 1981 Mad 310 held that temporary injunction cannot be granted to enable the vendee to protect his possession. The Madras High Court was of the view that in a suit for specific performance of an agreement of sale by the prospective vendee, such vendee can-not be granted temporary injunction to enable him to protect his possession only on the basis of the terms of the agreement that he was given possession of the property on the date of agreement of sale unless the truth of delivery of possession is established at the trial.

(3.) Provisions of S.37 read with S.53-A of the Transfer of Property Act were considered by the Bombay High Court and the Bombay High Court was of the view that where the case of the plaintiff is that under an agreement of sale he has been put in possession of the suit land and prima facie when the agreement itself recites that the possession has been delivered to the plaintiff and the agreement is on stamp paper and execution thereof is admitted by the defendant then the plaintiff is entitled to the relief of injunction, in a suit seeking specific performance of agreement. The Bombay High Court has discussed the case of the Madras High Court in a case of Venkat Dharmaji v. Vishwanath, AIR 1983 Bom 413.