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IN THE HIGH COURT OF BOMBAY
S.J. Deshpande, J.
Ganpat Bapu Sawant.... Petitioner.
Versus
Balkrishna Atmaram Shirsat.... Respondent.
Civil Revision Application No. 641 of 1983, decided on 8/29-10-1984.
Advocates appeared :
G.R. Rege, for petitioner.
G.B. Karandikar, for respondent.
TRANSFER OF PROPERTY ACT - SECTION 53-A - INJUNCTION - POSSESSION - TITLE - CONTRACT OF SALE - PART PERFORMANCE - WILLINGNESS TO PERFORM - CONDITIONS - APPLICABILITY OF SECTION 53-A - INTERPRETATION - RATIO DECIDENDI - PRIVY COUNCIL - SUPREME COURT - DISTINCTION BETWEEN SUITS BASED ON TITLE AND SUITS BASED ON CONTRACT.
Fact of the Case:
Plaintiff filed a suit for permanent injunction against defendant No. 1 and other defendants, claiming possession of certain properties based on an agreement of sale. The agreement was on a simple paper, not stamped or registered. The trial court and the appellate court rejected the application for injunction, finding that the plaintiff had failed to prove his prima facie possession and that the defendant's title was still valid. The plaintiff filed a revision application challenging the lower courts' decision.
Finding of the Court:
The court held that the plaintiff could not obtain an injunction based on section 53-A of the Transfer of Property Act, as he had not complied with the conditions laid down in the section. The court also held that the plaintiff's possession, even if obtained under the agreement of sale, was not sufficient to claim injunction against the vendor. The court further held that the plaintiff's suit was not maintainable as he had no title to the property and could not enforce a solitary term of the contract without following the full conditions mentioned in the contract.
Issues: 1. Whether the plaintiff could obtain an injunction based on section 53-A of the Transfer of Property Act without complying with the conditions laid down in the section? 2. Whether the plaintiff's possession, even if obtained under the agreement of sale, was sufficient to claim injunction against the vendor? 3. Whether the plaintiff's suit was maintainable as he had no title to the property and could not enforce a solitary term of the contract without following the full conditions mentioned in the contract?
Ratio Decidendi: 1. Section 53-A of the Transfer of Property Act confers no active title on the transferee and is available only as a defence to protect the transferee's possession. (Probodh Kumar v. Dantamara Tea Co., A.I.R. 1940 P.C. 1) 2. A plaintiff suing on the basis of an agreement of sale cannot obtain an injunction against the vendor by enforcing a solitary term of the contract without following the full conditions mentioned in the contract. (Delhi Motor Co. v. Basrurkar, A.I.R. 1968 S.C. 794) 3. A suit for injunction based on a contract of sale is not maintainable if the plaintiff has no title to the property and is not willing to perform his part of the contract.
Final Decision: The court dismissed the plaintiff's revision application and upheld the lower courts' decision refusing injunction.
2. Para 2-D of the agreement relates to property situate at village Galot. It is stated that it is of ancestral ownership and in that property also, the vendor has got in joint 7/30th share. Though agreement mentions 7/20th share, in fact, I am told by both the learned Advocate that the share of the plaintiff is 7/30th. Therefore, wherever 7/20th is stated, it should be read as 7/30th. Out of the said properties mentioned in para 2-A, D, the vendor has right including Patpani Imarati etc., which are all hereby agreed to be sold to the plaintiff for a consideration of Rs. 8,000/- and an amount of Rs. 7,000/- has been received on the date of agreement in cash and as separate receipt is necessary for the same. After the decision of the Supreme Court in S.L.P. 124/3320/79, in accordance with the judgment a balance sum of Rs. 1,000/- will be paid in cash to the vendee. The properties mentioned above have been given in possession of the plaintiff, with all rights of wahiwat and ownership and the vendor has no interest reserved in this property and vendor will not claim any right and if anybody claims that right, the vendor is liable to get the property clear from any such claim at his own costs. This agreement was executed on 20th October, 1979.
3. It is alleged by the plaintiff that on 2nd April, 1981, defendant No. 1 tried to obstruct his possession. The plaintiff filed a suit for permanent injunction against defendant No. 1 and other defendants.
4. During the pendency of the suit, the plaintiff made an application Exhibit 10, praying injunction against the defendant No. 1 restraining him from interfering with his possession. The said application was replied to by the defendant No. 1 by filling his say. In the said reply, it was contended that the said property is of joint wahiwat and ownership of all the defendants and they are co-shares. In para 3 it is specifically stated that the suit property is in occupation of defendant No. 1 and defendants Nos. 1 to 3 have got possession and defendant No. 1 is in actual occupation and enjoyment of the property. The agreement relied on by the plaintiff was disputed by defendant No. 1 as being fraudulent, though no details were given. Defendants No. 1 also disputed possession of the plaintiff as alleged. It was also disclosed from the reply that on the same day, the other defendants, who are co-shares also agreed to sell the property to the plaintiff. It
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