1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.336 OF 2008 WITH CIVIL APPLICATION NO.4578 OF 2008 1) Keshardeo s/o Hanumanprasad Agrawal, R/o-Jafrabad, Dist-Jalna, 2) Trimbak s/o Rakhamaji Diwate, R/o-Jafrabad, Tq-Jafrabad, Dist-Jalna. ...APPELLANT. VERSUS 1) Susheel s/o Rampratap Khandelwal, R/o-Jafrabad, Tq-Jafrabad, Dist-Jalna. 2) Pralhad s/o Rakhamaji Diwate, R/o-Jafrabad, Tq-Jafrabad, Dist-Jalna, 3) Gram Panchayat Karyalaya, Through Sarpanch Jafrabad Gram Panchayat, Jafrabad, Tq-Jafrabad, Dist-Jalna. ...RESPONDENTS. .... Mr. A.R. Kale Advocate h/f. Mr. R.B. Deshmukh Advocate for the Appellants. Mr. R.F. Totla Advocate for Respondent No.1. None present for Respondent Nos. 2 and 3. .... 2 CORAM: K.K. TATED, JUDGE, DATE: 22ND JUNE, 2009. PER COURT: 1. Heard Mr. Kale, learned counsel appearing on behalf of the Appellants and Mr. Totla, learned counsel appearing on behalf of Respondent No.1. Though Respondent No.2 is served, no one appeared on behalf of him and Respondent No.3 is a formal party. Hereinafter the parties will be referred as they appear in the Suit. 2. The plaintiffs preferred Regular Civil Suit No. 42 of 1998 before the Civil Judge, Junior Division, Jafrabad for perpetual injunction against the Respondents not to disturb their possession in respect of 1 Guntha of land from Survey No.47 situated at village Jafrabad, on the basis that they are in possession of the suit property as per agreement for sale dated 20th August, 1979 executed by one Nathu K. Patil. It is the case of the plaintiffs that Nathu K. 3 Patil sold 1 Guntha of land to the plaintiffs by agreement for sale dated 20th August, 1979 for a sum of Rs.4,000/- and handed over possession of the same. The said sale deed was conditional i.e. subject to obtaining N.A. permission by Nathu K. Patil. As it remained on the part of Nathu K. Patil to execute the sale deed, the plaintiffs preferred suit for specific performance of the agreement for sale dated 20th August, 1979. The said suit was dismissed for default. Thereafter the plaintiffs - Appellants preferred application for restoration of the suit and the said application was also dismissed. Against that order of dismissal of application for restoration, the plaintiffs preferred Appeal. The said Appeal was also dismissed. 3. It is the case of the plaintiffs that Nathu K. Patil handed over vacant possession of the suit property on 20th August, 1979 to them and since then they are in possession of the said 1 Guntha of land. On this basis, they preferred Regular Civil Suit No.42 of 1998. The said suit was dismissed on 13th August, 2004 by Civil Judge, Junior Division, Jafrabad. In 4 that suit, the Respondent No.1 i.e. original defendant No.1 preferred counter claim for possession of the suit property on the ground that he purchased the said property by registered sale deed dated 22nd April, 1998. The said counter claim was allowed by the trial Court. The trial Court framed following Issues: ISSUES FINDINGS 1) Do the plaintiffs prove that, Nathuji s/o Kaluji Patil delivered possession of suit plot to plaintiff No.1 by virtue of agreement of sale dated 20.08.79 as alleged? In the negative. 2) Do the plaintiffs prove that, plaintiff No.2 is in possession of suit plot as tenant of plaintiff No.1 since 1.1.1986 running his shop erecting tin- shed under the name and style "Maharashtra Machinery Stores" as alleged? In the negative. 3) Does defendant No.1 prove that, he is bona fide purchaser of suit plot and became owner by virtue of sale deed No. 926 dated 22.4.1998? In the affirmative. 4) Do the plaintiffs prove that, defendants causing illegal obstruction and interference in their possession over suit plot as alleged? In the negative. 5 5) Are plaintiffs entitled for the relief of perpetual injunction as sought for? In the negative. 6) Is defendant entitled for the relief of recovery of possession of suit plot as sought for? In the affirmative. 7) What order and decree? As per final order. 4. The Issue No.1 is specific on the point of possession. The trial Court held that the plaintiffs failed to prove that Nathu Kaluji Patil delivered possession of the suit plot to the plaintiff No.1 by virtue of agreement of sale dated 20th August, 1979. 5. Being aggrieved by the Judgment and decree dated 13th August, 2004 passed by Civil Judge, Junior Division, Jafrabad in Regular Civil Suit No.42 of 1998, the plaintiffs preferred Regular Civil Appeal No.138 of 2004. The said Appeal was dismissed by the first appellate Court by its Judgment and decree dated 6 6th August, 2007. The first appellate Court also categorically held that the plaintiffs failed to prove their possession in respect of the suit property. Being aggrieved by the Judgment and decree dated 6th August, 2007 passed by District Judge-2, Jalna in Regular Civil Appeal No.138 of 2004, the plaintiffs preferred present Second Appeal on the ground that the observation of the first appellate Court in para No.34 of the Judgment that the plaintiffs have not specifically pleaded that their possession over suit plot is protected under Section 53-A of the Transfer of Property Act are perverse in as much as the plaintiffs have filed their suit for possession on the basis of agreement to sale which goes to show that they have claimed their possession under agreement and law is not required to be pleaded. 6. Learned counsel for the plaintiffs further submitted that as the defendant No.1 filed counter claim for possession, it itself shows that plaintiffs are in possession of the suit property and therefore both the Courts below erred in coming to the conclusion that plaintiffs failed to prove the 7 possession of suit property i.e. land admeasuring 1 Guntha from Survey No.47. 7. With the assistance of both the counsel, I have gone through the Record and Proceedings called by this Court by order dated 18th February, 2009. From the Plaint, it is clear that the plaintiffs have filed the suit for perpetual injunction on the ground that they are in possession of the suit property on the basis of agreement for sale dated 20th August, 1979 executed by Nathu K. Patil and handed over possession on the basis of Isar Pavati. It is to be noted that PW2 Keshardev Hanumanprasad Agrawal specifically stated that he was in possession of the plot of land since 1st January, 1986; whereas the plaintiffs' case is that they are in possession of the suit property on the basis of Isar Pavati dated 20th August, 1979. This itself shows that the plaintiffs' witness admitted that he is in possession of the suit property since 1st January, 1986, then it is not possible to hold that plaintiff No.1 is in possession of the suit property on the basis of agreement for sale dated 20th August, 1979 with Nathu K. Patil. It is well settled 8 principle that plaintiff has to stand on his own pleadings. Not only that, the plaintiff cannot ask the injunction against the true owner. In the present case, it is the case of the defendant No.1 that he purchased the suit property by sale deed dated 22nd April, 1998 for a sum of Rs.12,000/-. 8. The first appellate Court, at the time of dismissing the Appeal, relied on the Apex Court Judgment in the Case of Mohan Lal and another vs. Mira Abdul Gaffar and another, reported in AIR 1996 S.C. Page 910. It is specifically held by the Apex Court, in the reported case, that plaintiff cannot claim the possession under Section 53-A of the Transfer of Property Act if he is claiming the possession on the basis of adverse possession. The observations of the Apex Court are as under: " The only question is whether the appellant is entitled to retain possession of the suit property. Two pleas have been raised by the appellant in defence. One is that having remained in possession from March 9 8, 1956, he has perfected his title by prescription. Secondly, he pleaded that, he is entitled to retain his possession by operation of Section 53-A of the Transfer of Property Act, 1882 (for short 'the Act') and observed that: " As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., unto completing the period of his title by prescription nec vinec claim nec precario. Since, the appellant's claim is founded on Section 53-A, it goes without saying that, he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of 10 adverse possession is not available to the appellant." "The question then is whether he is entitled to retain possession under Section 53-A. It is an admitted fact that, suit for specific performance had been dismissed and became final. Then the question is whether he is entitled to retain possession under the agreement. Once he lost his right under the agreement by dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement. Even otherwise, a transferee can avail of Section 53-A only as a shield but not as a sword. It contemplates that, where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has performed or is willing to perform his part of the contract, he would be entitled to 11 retain possession and to continue in possession, which he has already received from the transferor so long as he is willing to perform his part of contract. Agreement does not create title or interest in the property. Since the agreement had met with dismissal of the suit his willingness to perform his part of the contract does not arise." 9. Learned counsel appearing on behalf of the defendant No.1 pointed out that even the plaintiff No. 2 failed to prove that he is in possession of the suit property in the capacity of a tenant and therefore, both the Courts held that plaintiff No.2's possession over the suit property was as tres-passer. Therefore the trial Court allowed the counter claim and the first appellate Court dismissed the Appeal preferred by the Plaintiffs. Even the plaintiffs failed to prove their possession by adducing any documentary evidence on record. 10. Both the Courts concurrently held that the 12 plaintiffs failed to prove their possession over the suit property. The learned counsel appearing on behalf of the Appellants - original plaintiffs relied on the Judgment in the matter of Shrimant Shamrao Suryawanshi and another vs. Pralhad Bhairoba Suryawanshi and another, reported in 2002 (2) Mh. L.J. Page No.1. In that case the Apex Court held that even if the suit for specific performance of contract is barred by limitation, the plaintiff can claim protection under Section 53-A of the Transfer of Property Act, 1882, in respect of his possession. This Authority is not applicable in the facts and circumstances of the present case. In the present case, the plaintiffs filed suit for injunction restraining the defendants from disturbing their possession. It is not a case for specific performance of agreement. Therefore, as held by the Apex Court in the matter of Mohan Lal and another (supra), the plaintiffs cannot claim the injunction against the true owner. 11. In the above mentioned facts and circumstances, I do not find any substance in the present Second Appeal. Therefore, Second Appeal is 13 dismissed summarily. 12. In view of the dismissal of the Second Appeal itself, nothing survive in the Civil Application No.4578 of 2008 and the same is rejected. (K.K. TATED), JUDGE. asb/JUN09/sa336.08