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IN THE HIGH COURT OF BOMBAY
Sharad Manohar, J.
Laxman Pandu Khadke.... Appellant.
Versus
Pandharinath Purushottam Rane.... Respondent.
Second Appeal No. 95 of 1981, decided on 11-3-1987.
Advocates appeared :
M.V. Sali, for appellant.
Miss K.N. Velankar for P.M. Pradhan, for respondent.
Held, That the plaintiff has no right to remain in possession of the suit land because if he was to 6Ie a suit for specific performance at this stage, it would be barred by limitation, the fact that if such a suit was filed by the plaintiff, it would be dismissed on the ground of bar of limitation is no ground for bolding that the plaintiffs initial legal possession has converted itself into an illegality. Moreover, provisions of Section 27 of the Limitation Act, 1963 have no applications to this suit. May be that the plaintiffs right to file the suit for specific performance is barred but the substantive right is not extinguished. Section 27 of the Limitation Act refers to a suit for possession, not to a suit for specific performance. If a so it for possession, is barred by limitation, the very substantive right in respect of the property is extinguished. But that is not the position when the suit is not required to be filed only for possession but only for specific performance. In the instant case the plaintiff need not file a suit for possession at all. His right to have specific performance cannot, therefore, be said to have been extinguished. That right exists. His possession which was relatable to the Agreement of Sale also exists. The lawful character of that possession continues to exist. The plaintiff thus has got the present right to remain in possession. He is, therefore, entitled to approach a Court of equity to ask for injunction with a view to protect that legal right.
Section 38-Suit for injunction-Maintainability of.
A suit for injunction is always maintainable for protection of plaintiffs possession, if the plaintiff can make good his case before the Court that he is in lawful possession of the property. In the instant case, we are proceeding upon the assumption that the plaintiffs initial possession and his subsequent continuation of the same are both lawful. If that is the possession, then he is in possession rightfully. Only the strangers having better title not the defendant can disturb his possession save by the process of law. As is well known by now, the Courts have gone a step further and have shown their inclination to hold that even a trespasser can maintain a suit for injunction if his possession is of long-standing character. Such suit is justified on the basis of what is called possessory title. Such person claiming such possessory title can maintain such suit for injunction. In the instant case, the plaintiff had a right to remain in possession not only against the rest of the world but also against the present defendant. He was initially inducted into possession of the suit premises on the basis of the agreement. Nothing has transpired subsequently which makes that lawful agreement unlawful by the occurrence of any subsequent even. It may be that if the plaintiff was not ready and willing to pay the balance of the amount of the price he would not be entitled to claim the protection under Section 53-A of the Transfer of Properties Act on the basis of the part performance but in the instant case the plaintiff has issued notices after notices to the defendant expressing his readiness and willingness to pay the balance of amount. Entire equity is in favour of the plaintiff. In these circumstances, nothing can be perceived from the record which could give rise to the interference that there is any infirmity about the plaintiffs right to remain in possession. If he has present right to remain in possession, he has every right to ask for suitable remedies in that behalf.
Section 27.
See Specific Relief Act (47 of 1963), Sections 37, 10.
Sections 37, 10-Limitation Act (36 of 1963)-Section 27-Suit for injunction-Maintainability of-Person entering into possession of suit property lawfully can maintain suit for injunction simplicitor without adding prayer for specific performance of agreement.
A suit for injunction is always maintainable for protection of plaintiffs possession, if the plaintiff can make good his case before the Court that he is in lawful possession of the property. In the instant case, the plaintiffs initial possession and his subsequent continuation of the same are both lawful. If that is the position, then he is in possession rightfully. Only the strangers having better titles not the defendant can disturb his possession save by the profess of law. As is well-known by now, the Courts have gone a step further and have shown their inclination to hold that even a trespasser can maintain a suit for injunction if his possession is of longstanding character. Such suit is justified on the basis of what is called possessory title. Such person claiming such possessory title can maintain such suit for injunction. In the instant case, the plaintiff had a right to remain in possession not only against the rest of the world but also against the present defendant. He was initially inducted into possession of the suit premises on the basis of the Agreement. Nothing has transpired subsequently which makes that lawful agreement unlawful by the occurrence of any subsequent event. It may be that if the plaintiff was not ready and willing to pay the balance of the amount of the price he would not be entitled to claim the protection under Section 53-A of the T. P. Act on the basis of part performance; but in the instant case the plaintiff has issued after notices to the defendant expressing-his readiness and willingness to pay the balance of the amount. Entire equity is in favour of the plaintiff. In these circumstances, nothing can be perceived from the record which could give rise to the inference that there is any infirmity about the plaintiffs right to remain in possession. If he has present right to remain in possession, he has every right to ask for suitable remedies in that behalf.
The fact that if such a suit was filed by the plaintiff, it would be dismissed on the ground of bar of limitation is no ground for holding that the plaintiffs initial legal possession has converted itself into an illegality. Moreover, provisions of Section 27 of the Limitation Act have no application to this suit. May be that the plaintiffs right to file the suit for specific performance is barred but the substantive right is not extinguished. Section 27 of the Limitation Act refers to a suit for possession, not to a suit for specific performance. If a suit for possession is barred by limitation, the very substantive right in respect of the property is extinguished. But that is not the position when the suit is not required to be filed only for possession but only for specific performance. In the instant case, the plaintiff need not file a suit for possession at all. His right to have specific performance cannot, therefore be said to have been extinguished. That right exists. His possession which was relatable to the Agreement of Sale also exists. The lawful character of that possession continues to exist. The plaintiff thus has got the present right to remain in possession. He is, therefore, entitled to approach a Court of equity to ask for injunction with a view to protect that legal right.
2. Facts are very simple. Admittedly, the suit land belonged to the defendant. By an agreement dated 31-5-1971 the plaintiff agreed to purchase the said land from the defendant for the total sum of Rs. 11,500/-. A sum of Rs. 8,500/- was paid as earnest money and it is now a finding recorded by the lower Appellate Court that the possession of the land was made over by the defendant to the plaintiff by way of part performance of the agreement. The land was agricultural land and one of the terms of the agreement, naturally, was that the permission for sale of the land was to be obtained by the parties from the Collector. It is the case of the plaintiff which is accepted by the Court below that an application was made by the plaintiff to the revenue authorities for the necessary permission for sale of the land. On the date fixed for the consideration of the application, the plaintiff even remained present before the revenue authority but the defendant played hookey and just choose not to remain present before the authority. The result was that the revenue authority had no other alternative but to pass an order to the effect that application was disposed of. The plaintiff thereafter wrote a registered letter to the defendant expressing his willingness to pay the balance of the amount and to take the conveyance from the defendant but all this correspondence turned futile and the plaintiff got information that the defendant was intending to transfer the land to some one else. Hence, the instant suit was filed by the plaintiff for declaration about his right under the agreement and for injunction restraining the defendant from interfering with his possession.
3. There was some dispute as regards the nature of the plaintiff's suit. The dispute is now set at rest because Mr. Sali has made a categorical statement before the Court that the plaintiff had confirmed his claim only to injunction, if not in the trial Court, at least in the Appeal Court. I will, therefore, proceed on the assumption that the suit was for injunction simplicitor.
4. The defendant's defence was that the permission to sell the land was not taken by the plaintiff. Implication, therefore, was that the Agreement of Sale was ineffective. Further contention appears to be that the suit for injunction was not competent for various reasons, one of the reasons being that the plaintiff was not in possession of the suit property.
It appears that the defendant's said contentions were accepted by the trial Court and the plaintiff's suit was dismissed by the trial Court with costs.
5. As stated above, the plaintiff has filed the suit stating that he had confined his prayers only to the relief of injunction. His contention was that he was in possession of the suit land on the basis of the agreement, Exhibit 63, dated 31-5-1971. His further plea was that he was always ready and willing to pay the balance of the amount and that his possession which was initially lawful related to the Agreement of Sale, Exhibit 63 and that as such he was in lawful possession of the suit land. He, therefore, submitted that he was entitled to injunction from the Court against the defendant because his right to remain in lawful possession was being threatened by the defendant.
6. This contention has been accepted by the District Court. The appeal has been allowed and the plaintiff's suit for injunction has been decreed by the Appeal Court. Hence, this second appeal.
7. In the second appeal, Mr. Sali for the appellant contended that the position today is that there is no permission given by the revenue authorities for sale of the land and in the absence of such permission the possession of the plaintiff cannot be said to be lawful. Secondly, he cont
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