(1) SA. 748.2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 748 OF 2007 1] Syed Mehmood Ali S/o Syed Gafoor Ali Age : 68 years, Occu.: Agri., R/o Ajamabad Tq. Palam Dist. Parbhani 2] Syed Yasin Ali S/o Syed Mohamad Ali, Age : 42 years, Occu.: Agri., R/o as above .. Appellants VERSUS 1] Tulshiram S/o Ganpati Jadhav, Age : 70 years, Occu.: Agri., R/o Ajmabad Tq. Palam, Dist. Parbhani 2] Syed Haji S/o Shaikh Mohtab (deceased) Age : 60 years, Occu.: Agri., R/o As above .. Respondents AND CIVIL APPLICATION NO. 10546 OF 2007 IN SECOND APPEAL NO. 748 OF 2007 Syed Mahmood Ali S/o Syed Gafoor Ali and anr. .. Applicants VERSUS Tulshiram Ganpati Jadhav and anr. .. Respondents Mr. A.G. Godhamgaonkar, Advocate h/f. Mr. S.A.G. Qureshi, Advocate for the Appellants/Applicants Mr. Vinesh Solshe, Advocate h/f. Mr. V.C. Solshe, Advocate for respondent no.1 Respondent no.2 dead ... (2) SA. 748.2007 CORAM : K.U. CHANDIWAL, J. DATED : 26TH APRIL, 2010 ORAL ORDER:- 1] Heard Mr. Godhamgaonkar learned counsel for the appellants-original defendants. The concurrent findings in Regular Civil Suit no. 247 of 1994 dated 14.10.2002 by learned Civil Judge Junior Division, Gangakhed confirmed in Regular Civil Appeal no. 53 of 2004 dated 20.7.2007 by the learned Adhoc District Judge-1, Gangakhed are assailed by the appellants by posing substantial questions of law:- a] Whether a mere contract for sale of immovable property create interest in the immovable property as per section 14 along with section 54 of the Transfer of Property Act? c] Whether the right conferred by section 53(A) of Transfer of Property Act is right available to defendant only to protect possession as defendant or can file suit to protect possession as plaintiff when there is bar of creating any right over suit property? d] The transferee must have some act in furtherance of the contract and transfer must have perform or be willing to perform his part of contract. 2] The checkered history of litigation need not be reproduced, however, for the purpose of answering the questions posed by Mr. Godhamgaonkar, the facts can be condensed. (3) SA. 748.2007 3] The plaintiff (respondent no.1 in the Appeal) asserts to have come in possession of the suit land based on agreement of sale dated 14.9.1960 by one Vajid Ali. He had also another stand of tenancy for which he tried to place reliance on the revenue record before the learned Judge in the form of entries by exhibit 34. The stand of tenancy was negated. 4] Subsequently Vajid Ali's son sold the suit land to Shaikh Haji by sale deed dated 7.3.1969. Shaikh Haji had prosecuted the proceedings against the plaintiff Tulsiram by Regular Civil Suit no. 89 of 1969. He lost. He preferred Regular Civil Appeal no. 87 of 1981 before the learned District Judge and lost. Second Appeal no. 70 of 1985 did not yield any result and the decree in Regular Civil Suit no. 89 of 1969 has reached finality. Shaikh Haji after losing at all the levels sold the suit property on 16.3.1994 to the present appellants. 5] Mr. Godhamgaonkar submits the decree for injunction being against spirit in section 41(e) and 14(1)(a) of the Specific Relief Act, the Court could not have injuncted the appellants. Section 41(e) is as under:- 41. Injunction when refused - An injunction cannot be granted- (4) SA. 748.2007 .. (e) to prevent the breach of a contract the performance of which would not be specifically enforced; . Section 14(1)(a) is as under:- 14. Contracts not specifically enforceale- (1) The following contracts cannot be specifically enforced, namely:- (a) a contract for the non-performance of which compensation in money is an adequate relief; 6] The law in relation to protection of possession of a person based on an agreement of sale is settled by catena of judgments. The four requisites which indeed are referred by the learned Judge in paragraph no.45 in Regular Civil Suit no. 247 of 1994, are reproduced as under:- "1. That the transferor has contracted to transfer for consideration of 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 certain. This condition is fulfilled by defendant no.1. 2. That transferee has in part performance of contract taken possession of the property. 3. That the transferee has done some act in furtherance of contract. (5) SA. 748.2007 4. That the transferee has performed or is willing to perform his part of contract." . The position of law as stated earlier is even indicated in the matter of Shrimant Shamrao Suryavanshi and anr. V. Pralhad Bhairoba Suryavanshi (dead) by LRs. and others (AIR 2002 SC 960). 7] Vendor of the appellant (Haji Ali) having lost his remedies against the plaintiff Tulshiram, in the eyes of law, it is not open for the present appellant Syed Mehmood Ali to agitate same contentions. He has stepped in the shoes of his vendor Shaikh Haji openly, nakedly, purchased consequences arising out of the earlier litigation being Regular Civil Suit no. 89 of 1969, it would be binding to him. 8] The contention that the plaintiff Tulshiram is not proved to be the tenant, and exhibit 34 indicates the same, may be correct. However, the long drawn entries of possession reflected in favour of Tulshiram from 1958-1959 to 1967-1968 (at exhibit 34) 1967-1969 to 1970 (at exhibit 35) 1970-1971 to 1978-1979(at exhibit 36) and 1982-1983 to 1993-1994 (at exhibit 5) devastate the contention of the present appellant to be in possession through his vendor Shaikh Haji. (6) SA. 748.2007 9] The appellants may be having a title but it is the only defective title without any semblance of possession as the plaintiff Tulshiram in un-mistaken terms has proved his possession of the suit property, may be based on the agreement of sale dated 14.9.1960. The learned Judge has rightly observed, the defendant no.1 and 2 (appellants herein) can get the rights which the defendant no.3 Shaikh Haji had and nothing more than that. 10] The points tried to be formulated by Mr. Godhamgaonkar, will not be permitting to do so as there is no bar in terms of filing a suit under section 41(e) or no situation in terms of section 14(1)(a) of the Specific Relief Act, 1963 is surfacing. Second Appeal sans merit, stands dismissed. Civil Application no. 10546 of 2007 also stands dismissed. Sd/- (K.U. CHANDIWAL, J.) arp