1 WP 830/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 830 OF 2010 Dilawar Dastagir Inamdar & Anr. .. Petitioners V/s Fazaluddin Aminuddin Mulla, since deceased through his L.Rs. .. Respondents Mr. Anand Vadgaonkar for the petitioners. Mr. S.S. Patwardhan for the respondent nos.1a to 1e. CORAM : D.G. KARNIK, J. DATE : 28TH JULY 2010 P.C. : 1. Heard. 2. By this petition, the petitioners challenge the order dated 17 November 2009 passed by the learned Adhoc District Judge-I, Sangli, allowing the appeal of the respondents and thereby dismissing the petitioners’ application for injunction. 3. The respondents are the heirs of Fazaluddin – the original owner of the suit property. According to the petitioners, by an agreement dated 17 March 1994 Fazaluddin agreed to sell the suit property to them for a consideration of Rs.50,000/-. By receiving 2 WP 830/10 Rs.35,000/- as an earnest money, Fazaluddin transferred the possession of the suit property to them in part performance of the agreement. The petitioners filed a suit, not for specific performance of the agreement for sale, but for an injunction simpliciter restraining Fazaluddin from disturbing their possession. On death of Fazaluddin, the respondents were brought on record as his heirs during the pendency of the suit. While the trial court granted the injunction, the appellate court vacated the injunction holding that the petitioners had not made out prima facie case for grant of injunction. 4. Fazaluddin, in his life time filed the written statement denying the agreement for sale. Counsel for the respondents submitted that assuming that there was an agreement of sale, injunction cannot be granted in a suit merely for injunction in which no relief of specific performance was claimed. He further submitted that section 53A of the Transfer of Property Act can be used as a shield and not as a sword. In support he referred to and relied upon a decision of the Privy Council in the case of Probhod Kumar Das v. Dantawara Tea Co., AIR 1940 P.C. 1. Per contra, relying upon a Full Bench decision of this Court in the case of 3 WP 830/10 Sadashiv Chander Bhamgare v. Eknath Pandharinath Nangude, 2004 (4) B.C.R. 564, counsel for the petitioner submitted that even if a suit for specific performance was barred by limitation, still the purchaser could maintain a suit merely for injunction so as to protect his possession under Section 53A of the Transfer of Property Act. 5. In the case of Probhod Kumar Das (supra), the Privy Council has held that the right conferred under Section 53A of the Transfer of Property Act is a right available only to the defendant to protect his possession. It appears that the law has progressed thereafter and the Courts in some cases appear to have taken a view that the proposed transferee in possession of the property can maintain an action for injunction in certain circumstances. In the case of Sadashiv Chander Bhamgare (supra), the Full Bench of this Court has held that under certain circumstances a transferee can claim an injunction under Section 53A of the Transfer of Property Act. The Full Bench has however observed that before a transferee becomes entitled to claim protection of possession under section 53A of the Transfer of Property Act, he has to satisfy the following conditions: 4 WP 830/10 “(i) there must be a contract for transfer for consideration of any immovable property; (ii) the contract must be in writing, signed by the transferor , or by someone on his behalf; (iii) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (iv) the transferee must in part-performance of the contract take possession of the property, or of any part thereof; (v) the transferee must have done some act in furtherance of the contract, and (vi) the transferee must have performed or be willing to perform his part of the contract.” 6. Condition nos. (v) and (vi) are material for the purpose of 5 WP 830/10 this petition. For claiming the relief of injunction, the petitioners were required to point out that they had done some act in furtherance of the contract and were further required to prove that they had performed and willing to perform their part of the contract. In the present case, both these conditions have remained unfulfilled. Except for a statement that the petitioners had made an application to the revenue authorities for entering their names in the revenue records which was declined by the revenue authorities, the petitioners have not stated that they had done anything in pursuance of the contract of sale. Further more, they have not showed their readiness and willingness to perform their part of the contract. In paragraph 5 of the plaint, they have stated that they had paid Rs.35,000/- and balance amount of Rs.15,000/- was payable. That was not paid because the defendant did not obtain permission necessary for the same. Whole of the plaint is silent about whose permission was necessary and under what provision of law. On being asked, learned counsel for the petitioners was unable to point out any provision in any law requiring permission for the sale deed. Thus, the petitioners had not proved their readiness and willingness to perform their part of the contract. Consequently, they were not entitled to the relief of 6 WP 830/10 injunction. The appellate court, therefore, committed no error in allowing the appeal and refusing injunction. The writ petition is rejected summarily. (D.G. KARNIK, J.)