1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.339 OF 2008 IN EXECUTION APPLICATION NO.160 OF 2005 IN SUIT NO.3478 OF 1996 Noorjahan Sayed & Ors. ...Plaintiffs Vs. Smt. Rama Gauri & Ors. ...Defendants And Gajanan Ramnath Lokare ...Applicant/ Respondent /obstructionist Mr.B. Patel with Mr. Munir Merchant for Plaintiffs Mr. Gore S.B i/b. S.M.Surkar for Applicants CORAM: SMT.ROSHAN DALVI, J. DATED: 2 ND SEPTEMBER, 2008 ORDER 1. The Plaintiffs in the above Suit obtained an Ex-parte decree on 14 th October, 2003 for specific performance of their agreement dated 2nd February, 1995 with the Defendants. The Plaintiffs sought to execute the decree by issue of a warrant of possession. During the course of taking possession the Respondent obstructed the execution of the decree. Hence, this Chamber Summons has been taken out 2 under Order XXI Rule 97 of the C.P.C. 2. It is the case of the Respondent that one Mr. & Mrs. Desai sold the suit premises to Uday Shetty on 16 th September, 1996. Uday Shetty sold the property to Chandrakant Khanolkar 27 th December, 1999. Chandrakant Khanolkar sold the property to the Respondent /Obstructionist on 7th August, 2003. The Respondent has shown that he has paid the consideration, hence, he is put in possession on 6th August, 2003. 3. The very first transfer by the Defendant is after the filing of the suit and much after the transaction of the Defendant with the Plaintiff. The Defendant had already entered into an agreement with the Plaintiffs on 2nd February, 1995. This suit came to be filed for specific performance of that agreement on 4th July, 1996. The Defendant transferred the suit property to one Rama Gauri W/o, Ramniklal Parikh who in turn transferred the suit property to one Mr. & Mrs. Desai on 30 th April, 1996, three months before filing of the suit. Thereafter, these parties have entered into similar further transfers. 4. It is contended on behalf of the the Respondent that only Uday Shetty is brought on record and that Mr. & Mrs. Desai, 3 Chandrakant Khanolkar and the Respondent were not brought on record of the Suit and hence the Respondents possession must be protected. 5. The Plaintiffs did not bring subsequent transferees on record, presumably because the Plaintiff had no knowledge of so many subsequent transfers that are alleged. Hence, the Plaintiffs have to face obstruction. Had the transferees been on record as parties to the Suit, their rights, if any, could have been considered in the suit itself. Since they were not on record, their rights would have to be considered in this Chamber Summons upon obstruction to the decree. Merely not bringing the subsequent transferees on record of the Suit is not fatal to the Suit. It only entails rights to be determined later – i.e., in execution upon obstruction. The Court has to see only the transactions between parties at the time of final hearing. Pending the Suit other parties may be brought on record, if any reliefs are required to be obtained against them. Not bringing subsequent transferees on record, would not militate against the Plaintiffs cause of action at the time of the final hearing of the suit. The Plaintiffs did not obtain any relief of injunction against further transfer. Hence, further transfers could have been made subject to the right of the Plaintiffs. 4 6. The Plaintiffs would have to execute the decree against whoever is found in possession. Such further transfers made are subject to the Plaintiffs' initial transaction. For the purchase of any immovable property, the purchaser has to take search, if required, and takes the property subject to the title, if any, left with the Vendor. 7. The Plaintiffs' suit is filed for specific performance of the agreement in respect of the suit premises between the Plaintiffs and the Defendants. Upon the decree in the suit being passed, the Plaintiffs would be entitled to have the agreement specifically performed and obtain title. Of course, until that time, the Plaintiffs would have no title. Hence, the Defendant could have transferred the suit premises to any other party since, he continued to have title. Consequently, the further transfers would have to be seen. 8. The suit property is a room. Each transfer was by an affidavit. None of these affidavits is registered or shows payment of adequate stamp duty. Each is by a notorised affidavit on a stamp paper of Rs.20/- or Rs.100/- . Under such transfers the transferees cannot have the title transferred to them for want of registration of their documents. These transactions would not constitute a sale under the provisions of Section 54 of the Transfer of Property 5 Act. Hence, the Respondent could not acquire title pursuant to the transfer in his favour by Mr. Khanolkar, who had no title. The Defendant's title remained. The Defendant has been directed to specifically perform the agreement with the Plaintiffs and accordingly the Plaintiffs would acquire title from the Defendant. 9. The Respondent claims to protect his possession in the suit premises. He has obstructed the execution of the decree based on his possession in the suit premises. Such possession should be lawfully acquired. The Respondent must show how he came in possession of the suit premises under a lawful title. The documents relied upon by the Respondent himself, show no title in him. 10. Hence, the Respondent /Obstructionist is not in lawful possession. Consequently such possession cannot be protected by Court and cannot continue. It must yield to the right of the decree- holder. 11. The Plaintiff has relied upon the judgment in the case of P. Janardhana Rao Vs. Kannan & Ors. (2004) 11 SCC, 511 , in which also the obstructionist did not show lawful possession prior to the decree being passed. The resistance by the obstructionist thereafter was shown. Since he was 6 not in lawful possession the obstructionist notice came to be made absolute. 12. The Plaintiffs are entitled to recover possession from the Respondent /Obstructionist as an unauthorised occupant of the suit premises. 13. The Chamber Summons is made absolute in terms of prayer clause (a) and (b). If the Respondent /Obstructionist does not hand over the possession as per prayer clause (b) within 8 weeks from today, the Plaintiffs shall be entitled to recover possession, with police assistance if required. (SMT. ROSHAN DALVI, J.)