((-1-)) ms t IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.290 OF 2008 Subhash Bhikaji More Petitioner versus Krishnat Aabaji Kumbhar & ors. Respondents Shri Dilip Bodke for petitioner. Shri Girish Godbole for respondent no.1. CORAM : SMT.R.P.SONDURBALDOTA, J. DATE : 11th June 2008 PC : 1. Heard learned counsel for petitioner and respondent no.1. Respondent nos.2 and 3, though served, are absent. These respondents had not appeared before the Trial Court also. As a consequence, the suit was directed to proceed for ex-parte hearing against them. 2. Rule. Rule made returnable forthwith. By consent of parties the petition is disposed of finally. 3. Respondent no.1 is the plaintiff in Regular Civil Suit No.28 of 2006. Petitioner is ((-2-)) defendant no.1 and respondents 2 and 3 are the original defendants 2 and 3. By the present petition the petitioner challenges correctness and legality of order dated 30th October 2007 passed by the learned District Judge-I, Satara in Miscellaneous Civil Appeal No.162 of 2006. By the impugned order the learned District Judge-I, Satara set aside the order dated 5th August 2006 passed by the Court of Civil Judge, Junior Division, Medha, District Satara and restrained the defendants and/or anybody claiming through them from obstructing the joint possession of respondent no.1 over the suit property. 4. The facts leading to the present petition are as follows. 5. One Bhikaji-father of respondent no.1 was the owner of Block No.1146/A admeasuring 5 Hectors 15 R. He transferred a portion thereof admeasuring 2 Hectors 1 R in favour of one Ganpatrao Shinde. A Mutation Entry in respect thereof was made in the revenue records being Mutation Entry No.178. Subsequently in the year 1975, Bhikaji agreed to transfer an area of admeasuring 1 Hector 28.75 R to respondent ((-3-)) no.1 for the consideration of Rs.14,000/-. Accordingly, an agreement for sale was executed and Rs.11,000/- was paid to him. Bhikaji had agreed that he will execute the sale deed after obtaining necessary permission from the Government authorities. Accordingly sale deed came to be executed on 3rd April 1975. As per the sale deed, respondent no.1 was said to be put in possession of the land purchased by him. It may be mentioned here that indisputably neither the agreement for sale nor the sale deed specifically describe the suit property by specifying boundaries. 6. It appears that after the property was sold to respondent no.1, the revenue records were mutated by Mutation Entry No.764. Several years after recording of mutation entry, said entry was challenged by the petitioner by filing R.T.S.Appeal No.21 of 2005. The appeal was decided in favour of petitioner and Mutation Entry came to be cancelled on 28th April 2006. Two months thereafter i.e. on 12th June 2006 respondent no.1 filed a suit for injunction simplicitor to restrain the petitioner from disturbing his joint possession of the suit property i.e. the property ((-4-)) purchased by him and/or from evicting him from the land. He also filed an application for interim reliefs in the said proceedings. The application was heard and dismissed by the Trial Court by its reasoned order dated 5th August 2006. Respondent no.1 preferred an appeal therefrom to the Court of District Judge, Satara. By the impugned order the appeal came to be allowed and an injunction granted in favour of respondent no.1. 7. Perusal of the plaint, agreement of sale and sale deed clearly indicates that the land admeasuring 2 Hectors 1 R sold by Bhikaji to respondent no.1 is not at all identified by specifying its boundaries. Thus, the identity of the suit land is not clear. The sale deed mentions that the possession of the land is handed over to respondent no.1, without specifying the manner in which the possession of open piece of land was given. The learned Trial Judge in his exhaustive order held that respondent no.1 failed to make out prima facie case that he has been in possession of any portion of the suit land. In paragraph no.15 of his order he has observed that respondent no.1 has asked for an injunction restraining ((-5-)) the defendant from obstructing the joint possession over the suit property. In that case, he ought to have provided particulars of the portion of land he actually possessed-whether jointly or otherwise. The learned Judge has taken note of the fact that the documents executed in favour of respondent no.1, do not provide specification as to which part of Block No.1146/A was conveyed to respondent no.1. He also taken note of the fact that the documents do not speak of any joint possession and opined that the possession ought to be referred to as exclusive possession. The learned District Judge while upsetting the order of the learned Trial Court, has not commented on any of the reasons given by the learned Trial Judge for refusing the order of injunction. She has narrated the same facts as narrated by the learned Trial Judge but has simply given a different order thereon. 8. As already noted above, though respondent no.1 has a registered sale deed in his favour, the same does not specify the land purchased by him by giving its specific boundaries. The documents also does not mention the manner in which the respondent no.1 was put in ((-6-)) possession. Further, the plaint filed by respondent no.1 does not allege any overt act of possession over the suit land. Probably for this very reason respondent no.1 refers to joint possession in his plaint instead of exclusive possession. Even if the claim of respondent no.1 of joint possession of the suit property is to be taken into consideration, it will be difficult to grant any relief of injunction in favour of respondent no.1 for two reasons. Firstly that the plaint is devoid of any allegations as regards disturbance of alleged possession of respondent no.1 on the suit property. Secondly, the petitioner being admittedly the owner of suit property and in alleged joint possession with respondent no.1, there could be no relief of injunction as against him. 9. Learned counsel for the petitioner submits that the correct remedy available for respondent no.1 was actually to file a suit for possession against the petitioner. He draws attention to section 44 of the Transfer of Property Act and submits that if respondent no.1 claims to be co-owner of the suit property as is claimed in the plaint, he must file ((-7-)) proceedings to enforce partition of the same. Instead of taking such legal recourse, respondent no.1 chose to file a suit for injunction simplicitor. He further submits that the plaint as filed is defective inasmuch as it is devoid of specific description of the suit property. He refers to Order VII, Rule 3 of Code of Civil Procedure which requires that where the subject matter of the suit is an immovable property, the plaint shall contain description of the property sufficient to identify it. In the instant case, the plaint does not contain description of the property admeasuring 2 Hectors 1 R claimed by the respondent no.1. In the circumstances, the order passed by the learned Trial Judge was the correct order and did not require any interference. 10. In the circumstances writ petition is allowed. Order dated 30th October 2007 passed by the Court of District Judge-I, Satara in Miscellaneous Civil Appeal No.162 of 2006 is set aside. Consequently, the order of Trial Court dated 5th August 2006 stands revived and shall operate during pendency of the suit. Respondent no.1 shall pay costs of the petition ((-8-)) to the petitioner. (SMT.R.P.SONDURBALDOTA, J.)