1 ao25-11j IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.25 OF 2011 Karbhari Dagu Jadhav .. Appellant V/s. M/s. Premasal Builders & Developers & Ors. .. Respondents ..... Mr. A. V. Anturkar i/b. Mr. Kiran Joshi for the appellant. Mr. N. V. Walawalkar, senior counsel i/b. Mr. D.S. Patil for respondent Nos. 1 and 2. ..... CORAM : A. S. OKA, J. DATE : MAY 4 , 2011. P.C. :- Heard the learned counsel appearing for the appellant. The appellant is the original defendant No.19. First and second respondents are the original plaintiffs. It is not in dispute that respondent Nos. 3 to 17 (defendant Nos. 1 to 15) are claiming to be the original owners of the suit property. On 15th September, 2006, the respondent No.3 to 17 have executed a registered agreement for development in respect of the suit property in favour of the first respondent. Simultaneously, the respondent Nos. 3 to 6 executed a registered irrevocable general power of attorney in favour of partners of the first respondent. On 2 ao25-11j 19th September, 2006, the defendant Nos. 5 and 6 executed a registered consent agreement in favour of the first respondent. On 23rd March, 2007, the first respondent executed an agreement for development in favour of the second respondent. 2. The defendant No. 17 (respondent No.19 herein) who claims to the constituted attorney of the original owners (respondent Nos. 3 to 17) executed a registered sale deed dated 17th September, 2009 in favour of the appellant. In January 2010, the first and second respondents filed the present suit against the appellant and other respondents for a declaration that the agreement dated 15th September, 2006 and 19th September, 2006 are valid and subsisting. Various declarations are claimed as regards the illegality of the agreement for sale executed by respondent Nos. 3 to 17 on 26th February, 2009. A declaration is also claimed that the power of attorney dated 26th August, 2009, executed by defendant Nos. 1 to 15 in favour of defendant No. 17 is illegal. A declaration is claimed that the sale deed dated 17th September, 2009, executed in favour of the appellant by the defendant Nos.17 was illegal and void. 3. The respondent Nos. 1 and 2 filed an application at Exhibit 5 for 3 ao25-11j temporary injunction. In the said application, the respondent Nos. 1 and 2 prayed for injunction restraining the defendants from dispossessing the first and second respondents and from obstructing in the development activities carried on by them on the suit property. There is a Counter claim filed by the appellant in the said suit. In the Counter Claim, a declaration is prayed for that the appellant has become the owner of the suit property by virtue of the sale deed dated 17th September, 2009. There is a prayer for removal of construction carried out by the plaintiffs (first and second respondents) on the suit property and for handing over possession of the suit property to the appellant. In the Counter Claim, an application was made by the appellant at Exhibit-41 for grant of temporary injunction restraining the first and second respondents from carrying on any new construction. A prayer was also made enjoining the first and second respondents to stop the construction and restraining them from creating any third party rights. The trial Court by the impugned order has allowed the application filed by respondent Nos.1 and 2 and rejected the application at Exhibit-41. 4. The learned counsel appearing for the appellant submitted that the agreement dated 15th September, 2006, executed by the owners in 4 ao25-11j favour of the first respondent is merely an agreement for development. He submitted that the appellant by virtue of registered sale deed executed in his favour by the constituted attorney of the owners has acquired ownership in respect of the suit property. Relying upon a decision of this Court, he urged that the first and second respondents are not entitled to specifically enforce the agreement for development. He submitted that as the agreement is not enforceable, temporary injunction as prayed in application at Exhibit-41 ought to have been granted. He submitted that the trial Court committed an error by granting injunction in terms of prayers made in the application at Exhibit-5. He submitted that the injunction could not have been granted in as much as the first and second respondents are not entitled to specific performance of the agreement. He submitted that in any event, the injunction ought to have been granted restraining the first and second respondents from creating any third party interests. He urged that it may be clarified that the creation of third party rights by the first and second respondents will be subject to final result of the proceedings. 5. I have given careful consideration to the submissions. At this stage, there does not seems to be any dispute regarding the execution of the registered agreement of development as well as the power of 5 ao25-11j attorney by the predecessors-in-title of the appellant in favour of the first respondent. The agreement for sale and the sale deed relied upon by the appellant have been admittedly executed after the execution of the development agreement in favour of the first respondent. The learned trial Judge in paragraph No. 49 of the impugned order has noted that a sale permission for development has been granted by the Sub Divisional Officer by order dated 15th March, 2006 to enable the first respondent to develop the suit property. A permission dated 23rd March, 2007 for non-agricultural use has been obtained by the first respondent. It is stated that a public notice was published on 14th January, 2007 by the first and second respondents in a prominent newspaper. The trial Court held that commencement certificate dated 30th March, 2007 was issued by the Municipal Corporation, Kalyan to the first and second respondents to develop the suit property. The trial Court has also recorded a prima facie finding that the construction undertaken by the first and second respondents has been almost completed. The learned counsel appearing for the appellant is not in a position to seriously dispute this finding. 6. Perusal of the sale deed on the basis of which the appellant is claiming ownership clearly recites that the sale is made on “as is where 6 ao25-11j is basis”. The learned counsel appearing for the first and second respondents pointed out that to the said sale deed a copy of the mutation entry No.1090 has been annexed which makes a reference to the permission granted under Section 43 of the Bombay Tendency and Agricultural Lands Act, 1948, as well as the permission for Non Agricultural use in favour of one Prakash B. Pamnani who is stated to be a partner of the first respondent. It is also not in dispute that as of today the development agreement in favour of the first and second respondents has not been terminated or cancelled. Prima facie, it appears to me that the appellant has taken the suit property by a registered sale deed in the year 2009 subject to the development rights conferred by his predecessors-in-title on the first and second respondents. The document of Mutation Entry annexed to the sale deed of the appellant prima facie shows that the appellant had knowledge about the transaction in favour of the first and second respondents made by the original owners. As stated earlier, as of today, the development agreement has not been terminated. Prima facie, it appears that the suit property is purchased by the appellant on as is where is basis subject to the earlier rights created in favour of the first and second respondents. 7. In the circumstances, the learned trial Judge has passed a 7 ao25-11j discretionary and equitable order protecting the development activities of the first and second respondents. As the appellant has taken the suit property on as is where is basis, the learned trial Judge has rightly declined to grant temporary injunction in favour of the appellant. 8. In the circumstances, no interference is called for with the impugned order. As far as creation of further third party rights by the first and second respondents are concerned, no specific clarification is necessary. As the counter claim filed by the appellant for possession is pending, the creation of further third party rights will be subject to final decision of the counter-claim. 9. Subject to what is observed above, no case is made out for allowing the Appeal. Appeal is accordingly dismissed. 10. Civil Application No.31 of 2011 does not survive and the same is disposed of. 11. All contentions of the parties on merits of the suit will be kept open. 8 ao25-11j 12. The suit will be decided on its own merits without being influenced by the tentative findings recorded by the Court as well as by this Court. 13. Hearing of the suit is expedited. JUDGE