1 IN THE HIGH COUJRT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 155 OF 2006 Shri Narayan Hari Kelkar ... Appellant Vs. Shri Trimbak Sakharam Marathe & Ors. ... Respondents. ..... Mr. Bhushan A. Walimbe i/by M.S.Karnik, Advocate, for the appellant. Mr. Prasad Kulkarni i/by P.S.Dani, Advocate, for the respondent no.1. ..... CORAM: J.H.BHATIA,J. DATE : 13th August, 2009. P.C. 1. Heard the learned counsel for the parties. 2. The appellant before this Court is the original plaintiff. He filed Regular Civil Suit No. 28 of 1985 for declaration that he had become owner of the suit property by adverse possession and he also sought perpetual injunction restraining the defendant no.1 and defendant nos. 6 to 11 from disturbing his possession over the suit property. Contention of the plaintiff was that in 1967 his father had entered into an agreement with Sakharam Marathe, father of defendant no.1, whereby said Sakharam Marathe was agreed to sell the suit property to the father of the plaintiff and whole of the consideration amount was paid and since then the 2 property was in possession of his father. After death of his father, he continued to be in possession of the suit property. He claims that he had erected some fencing and had also planted some trees on the suit property. His name was already recorded in the city survey record as ‘occupant’. The defendant no.1 contested the suit by filing written statement and denied that there is any such agreement of sale. He also denied that the plaintiff or his father were in possession of the suit property since 1967. He also denied that the plaintiff had perfected his title by adverse possession for more than twelve years. According to him, in 1976, he had made an application for recording his name as legal heir of his deceased father on the strength of his Will. He contended that the entry in the city survey record showing possession of the plaintiff is false and it was taken without notice to him. Therefore, he prayed for dismissal of suit. 3. The Trial Court decreed the suit holding that the plaintiff was in possession since 1967 and he has perfected his title by adverse possession for more than twelve years. This judgment and decree by the trial court was challenged by the original defendant no.1 in Civil Appeal No. 87 of 1989. The appeal was allowed and the judgment and decree passed by the trial court was set aside. The appellate court held that there was no material to show that the plaintiff’s father was in possession for more than twelve years and that too hostile to the title of the original owner. 3 4. As noted above, according to the plaintiff, his father has entered into the property for the first time in 1967 on the basis of agreement for sale. But admittedly there is no document to establish such agreement or payment of consideration amount. Admittedly, neither the plaintiff nor his father got any sale deed executed. For the first time in 1983, name of the plaintiff came to be recorded as occupant of the suit property, though name of the defendant was already recorded as owner on the basis of application in 1976. The first appellate court came to the conclusion that even if it is presumed that the plaintiff or his father entered in the property on the basis of agreement for sale in 1967, their possession could not be treated as adverse possession to the true owners. First act done by the plaintiff adverse to the title of the true owner was in 1983 when he tried to get his name recorded as owner of the property. The suit was filed in 1984. Therefore, he had failed to prove his adverse possession for more than twelve years. 5. The learned counsel contends that the plaintiff is in settled possession and therefore, his possession could not be disturbed without following due procedure of law and therefore, injunction should have been granted. It should be noted that the plaintiff came to the court with a specific plea that he and his father entered into the suit property on the basis of agreement for sale with father of the defendant no. 1. Therefore, 4 in the circumstances, the plaintiff could file a suit for specific performance of the contract. Section 41(h) of the Specific Relief Act provides that injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding. As there is any specific contention of the plaintiff that there was an agreement of sale and his father had paid the consideration amount, he could certainly claim the decree for specific performance. It would be more efficacious relief which he did not claim. Therefore, in view of the provision of Section 41(h) of the Specific Relief Act, the plaintiff is not entitled to decree for perpetual injunction alone particularly after having failed to prove that he had preferred his title by adverse possession. In view of the circumstances, I find no substance in the present appeal and any substantial question of law involved in the appeal. 6. The Appeal stands dismissed. (J.H.BHATIA, J.)