JUDGMENT - DESHMUKH D.K., J.:---The Honble the Chief Justice has constituted this Bench for consideration and decision of the following point.

"Whether a suit simplicitor for injunction which is filed seeking protection under section 53-A of the Transfer of Property Act is maintainable."

2. The facts giving rise to the reference are, one Eknath Pandharinath Nangude, present respondent, filed a civil suit seeking a decree of perpetual injunction restraining the defendant, present appellant, from disturbing the possession of the plaintiff of two acres of land out of Gat No. 102 situated at village Gorhe Khurd, Taluka Haveli, District Pune. The case of the plaintiff is that on 20-2-1975 an agreement of sale was entered into between the plaintiff and the defendant for sale of two acres of land from Gat No. 102 situated at village Gorhe Khurd, Taluka Haveli, District Pune (hereinafter referred to as the "suit land") for consideration of Rs. 9,000/- on the date of the agreement an amount of Rs. 5,000/- out of the agreed consideration was paid by the plaintiff to the defendant and the defendant placed the plaintiff in possession of the land. According to the plaintiff on 25-2-1977 he paid further amount of Rs. 3,000/- to the defendant. According to the plaintiff, the defendant did not execute the sale deed. According to the plaintiff on 2-7-1992 the defendant and the members of his family obstructed the plaintiff from cultivating the suit land. He, therefore, filed the suit seeking a decree of perpetual injunction restraining the defendant from disturbing the possession of the plaintiff of the suit land. He claimed that he is in possession of the land pursuant to the agreement dated 20-2-1975 as a prospective purchaser. In this suit on an objection being raised by the defendant preliminary issue was framed to the effect "whether a suit simplicitor for injunction seeking protection under section 53-A of the Transfer of Property Act is maintainable?". The trial Court decided the issue and held that such suit is not maintainable and dismissed the suit. The order of the trial Court was challenged in appeal. The Appellate Court, however, came to the conclusion that such a suit is maintainable and therefore remanded the suit back for trial to the trial Court. It is against this order of the Appellate Court that Appeal From Order No. 1119 of 1995 was filed before this Court. This appeal was heard by the learned Single Judge. The learned Single Judge found that two learned Single Judges of this Court have held that a suit simplicitor for injunction for protection of the rights of the plaintiff under section 53-A of the Transfer of Property Act is not maintainable. The two judgements were, one in the case of (Hussain Khan s/o Sawarkhan Pathan v. Shaikh Ahmed s/o Shaiklal)1, reported in 1988(4) Bom.C.R. 60 : 1988 Mh.L.J. 55 and the other in the case of (Mathurabai K. Koli v. Roopchand L. Koli)2, reported in 2000(1) Bom.C.R. 133. The learned Single Judge also found that another learned Single Judge of this Court by judgment in the case of (Mahadeo Nathuji Patil v. Surjabai Khushalchand Lakkad others)3, reported in 1993(Supp.) Bom.C.R. (F.B.)500(N.B.) has no the contrary held that such a suit is maintainable. The learned Single Judge finding a clear conflict of opinion referred the matter to Honble the Chief Justice for referring the issue either to the Division Bench or to the Full Bench. The Honble the Chief Justice, therefore, constituted this Bench for consideration of the aforesaid issue.

3. The learned Counsel appearing for the appellant submits that the judgment of the learned Single Judge in the case of Hussain Khan referred to above holding that such a suit is not maintainable relies on a judgment of the Privy Council in the case of (Probodh Kumar Das and others v. Dantmara and Company Ltd.)4, A.I.R. 1940 P.C. 1, and therefore in the submission of the learned Counsel, the learned Single Judge who decided Dharmajis case was not justi

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