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IN THE HIGH COURT OF BOMBAY
A.D. Tated, J.
Krishna Govind Gaikar another.... Appellants.
Versus
Manoharlal D. Rupani.... Respondent.
Appeal From Order No. 142 of 1982, decided on 28-8-1986.
Advocates appeared :
P.L. Nain, i/by V.A. Phadke Co., for appellants-defendants.
Keshavdas Dalpatrai, for respondent-plaintiff.
The plaintiff claims that the defendant No. 1 agreed to sell 224 square yards of land out of Survey No. 357 to him and delivered possession thereof. There is nothing on record to indicate that after the alleged agreement for sale the property was surveved and the location of 224 square yards of land agreed to be sold by the defendant No. 1 to the plaintiff was determined. Had such location been determined, the plaintiff would have been in a position to file a map drawn to scale showing the dementions and the boundaries of the said land. From the sketch Ex. B to the plaint it is not possible to know what is the length and breadth of the land shown therein as the plaintiffs plot in suit.
It is also not possible to know what is the distance between the western boundary of the plaintiffs plot and the road which is shown to the west of the plaintiffs plot. The transferee can protect his possession of the land against the transferor under Section 53-A of the Transfer of Property Act, and in order to invoke the provisions of Section 53-A it is necessary that the terms necessary to constitute the transfer can be ascertained with reasonable certainty from the writing brought about to evidence the agreement for sale. In the instant case from the writing, a copy of which is Ex Parte A to the plaint, it is not possible to know which land admeasuring 224 square yards out of 22 - of land out of Survey No. 357 belonging to the defendant No. 1 will agreed to be sold to the plaintiff. The writing also does not indicate that in pursuance of the agreement for sale, possession of the land was delivered to the plaintiff.
Therefore, the plaintiff cannot defend his possession as against the owner of the land from whom he is said to have agreed to purchase the land with the aid of the provisions of Section 53-A of the Transfer of Property Act. If the vendee somehow enters into possession of the land but if it is not referable to the agreement for sale and is not in part performance of the contract. the vendee cannot protect his possession of the land as against the true owner on the ground that he has entered into an agreement for purchase of the said land in the present case, it is true that the defendant No. 1 did not reply to some of the notices served bag the plaintiff on him, but only on that basis it cannot be held that the plaintiff obtained possession of the suit land in part performance of the agreement for sale, dated 23rd January, 1978. Consequently, the plaintiff is not entitled to the temporary injunction sought by him. The order of the trial Judge granting the notice of motion of the plaintiff cannot be sustained.
2. The respondent (hereinafter referred to as "the plaintiff") filed S.C. Suit No. 691 in the Bombay, City Civil Court against the appellants (hereinafter referred to as "the Defendants") for specific performance of an agreement dated 23rd January, 1978 whereby the defendant No. 1 is alleged to have agreed to sell 224 square yards of land out of Survey No. 357 situate at Sindhi Society, 8th Road, Chembur, Bombay 400071. The plaintiff averred that the defendant No. 1 agreed to sell the suit land admeasuring 224 square yards marked in red boundary on the sketch, annexed to the plaint and market Exhibit 'B', to him for Rs. 9,000/- and that he received Rs. 4,500/- and the remaining consideration was to be paid by the plaintiff to the 1st defendant on his making out marketable and clear title to the plot and on his executing a deed of conveyance in respect of the said plot in favour of the plaintiff. A copy of the writing evidencing the said contract is annexed to the plaint and market Exhibit 'A'. The Plaintiff further averred that the defendant No. 1 put the plaintiff in possession of the land in suit which he had agreed to sell him in pursuance of the agreement for sale. He further averred that he was always ready and willing to perform his part of the contract, but the defendant No. 1 avoided to perform his part of the contract. He further averred that the defendant No. 1 acted dishonestly and fraudulently and after he put up some construction on the plot in suit complained to the municipal authorities against the said construction and the Municipal Corporation of Greater Bombay pulled down the construction being unauthorised. He also averred that the defendant No. 1 after entering into an agreement with the plaintiff to sell the suit land to him entered into an agreement with the defendant No. 2 for sale of the whole plot bearing Survey No. 357. The plaintiff also averred that the defendant No. 1 was interfering with his possession over the suit land and, therefore, the plaintiff sought a permanent injunction restraining the defendants from disturbing his possession. On those averments the plaintiff claimed specific performance of the agreement for sale in his favour and also claimed a permanent injunction restraining the defendants from disturbing his possession on the plot of land marked in red boundary on the sketch Ex. 'E' to the plaint.
3. The plaintiff took out a Notice of Motion and claimed a temporary injunction restraining the defendants, their servants and agents from entering on the suit land and disturbing his possession thereof.
4. The defendant No. 1 opposed the Notice of Motion by filing his affidavit dated 25th June, 1981. He denied that he entered into an agreement for sale in respect of 224 square yards of land out of Survey No. 357 to the plaintiff. He also denied that he put the plaintiff in possession of the suit land in pursuance of the agreement for sale. His case was that in the month of January 1978 the plaintiff approached him and expressed his desire to enter into an agreement for sale for a portion of land admeasuring 224 square yards. The defendant No. 1 informed the plaintiff about his inability to sell 224 square yards of land except in accordance with the terms of the consent decree in Suit No. 1204 of 1950 whereunder his mother had obtained 22 acres of land of Survey No. 357 on lease for 99 years commencing from the date of the decree. As per the said decree, the assignment and sub-lease of the said land could be permitted with the permission of the Collector on payment of the premium to be fixed by the Collector. The defendant No. 1 states that he produced a copy of the decree before the plaintiff for his inspection. There upon t
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