1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPEAL FROM ORDER NO. 11 OF 2008 APPEAL FROM ORDER NO. 11 OF 2008 APPEAL FROM ORDER NO. 11 OF 2008 WITH C.A. NO. 36 OF 2008 Shri Manish Mohanlal Rathod & Ors. ..Appellants Versus Shri Dilip Shantaram Wavre & Ors. ..Respondents Mr.G.S.Godbole, Advocate, for the appellants. Mr.K.Y.Mandlik,Advocate, for the respondent No.3.. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE : 6th February, 2008. DATE : 6th February, 2008. DATE : 6th February, 2008. P.C. P.C. P.C. 1. The plaintiffs have preferred this Appeal against the rejection of the application for temporary injunction. It is the case of the plaintiffs that they had entered into an agreement with defendant No.1 for purchase of the suit land bearing plot No.120 out of Survey No.596/1 to 6/4 admeasuring 301.13 sq. mtrs. 2 and situated within the limits of Nashik Municipal Corporation. Defendant no.1 had purchased this property on 30.9.98 under the sale deed. Defendant no.1 agreed to sell the suit property to the plaintiffs for consideration of Rs.10 lakhs on 23.8.2003 and on the same day, an amount of Rs.8 lakhs was paid as part consideration. The agreement for sale was also executed on the same day. On 27.8.2003, the balance amount of Rs.2 lakhs was also paid by the plaintiffs to the defendant No.1 and on 8.9.2003, the plaintiffs were put in possession of the suit property and since then they were in possession. In September, 2007, it came to the notice of the plaintiffs that defendant No.3 was making construction over the said plot. They issued the notice to defendant no.1, but he denied the agreement and, therefore, on 26.9.2007, the plaintiffs filed suit for specific performance of contract of sale. By application Exhibit 5, the plaintiffs sought a temporary injunction to restrain the defendants from creating any third party interest in the suit property and also from making development of the construction on the suit plot till disposal of the suit. 2. The defendants contested the application. Defendant No.1 denied to have entered into any agreement with the plaintiff and also to have received any amount 3 of consideration. According to him, possibly, his signatures on some blank papers were used for the purpose of preparing the forged agreement for sale. According to the defendants, defendant no.1 had made a gift of the suit property in favour of his son, defendant No.2 on 22.10.2003 and on 10.11.2004, the defendant no.2 entered into an agreement for sale in favour of defendant No.3 and on 18.12.2004, defendant no.2 actually executed a registered sale deed of the suit property in favour of defendant No.3. On the same day, the defendant No.3 was also put in possession of the property. According to the defendants, plaintiffs have come before this Court with false and concocted case. Defendant no.3 further contends that he had no knowledge of any agreement or transaction between the plaintiffs and defendant no.1 before entering into agreement with defendant no.2. He had issued the public notice in a local newspaper calling objections, if any. No objection was received and therefore, he entered into the agreement and purchased the land for valuable consideration of Rs.10,51,000/-. He has also taken possession of the land. After purchase he also got the plans for construction sanctioned from the Municipal Corporation and commenced the construction. According to him, he has spent an amount of about Rs.25 lakhs on the construction. Thus he is a bonafide purchaser for 4 value without any knowledge of any previous agreement between the plaintiff and defendant No.1. According to him, in these circumstances, the plaintiffs are not entitled to get any relief of any nature. 3. After hearing the parties, the learned trial Court rejected the application Ex.5. Hence, the plaintiffs are before this Court in appeal. 4. Heard the learned Counsel for the parties. 5. As stated earlier, according to the plaintiffs, the agreement for sale took place between them and defendant No.1 on 23.8.2003 and they paid an amount of Rs.8 lakhs on that day and balance amount was paid on 27.8.2003 and they were put in possession of the land on 8.9.2003. Defendant no.1 has not specficially denied his signature on the agreement for sale, but according to him, he being active in politics, he is required to put his signatures on so many papers and possibly his signature may have been misused. At this stage, it is difficult to accept the contention of the defendant No.1. If he is politically active person, it is difficult to imagine that he may be so innocent to put signatures on the papers and particularly the stamp papers which chould be utilised by anybody for creating 5 right or interest in his property. However, the fact remains that the agreement for sale in favour of the plaintiffs was not registered. There was no public notice of that agreement. Even though the plaintiffs claimed that they were put in possession, there was nothing at the site to show that the plaintiffs were in actual possession of the property. It is material to note that even though the alleged agreement had taken place in August 2003, no suit was filed by the plaintiff for specific performance of contract nor they had tried to get the sale deed executed at any time. It appears shortly after the said agreement, defendant No.1 executed a gift deed of this property in favour of his son, defendant No.2 on 22.10.2004. Defendant No.3 comes in picture in November, 2004. Before entering into this transaction with defendant no.2, he had issued public notice in a newspaper and as no objection was raised by anybody, he entered into agreement for sale with defendant No.2 and purchased the property for consideration of Rs.10,51,000/-. The sale deed was executed and registered on 18.12.2004. According to him, he also got possession of the property. It shows that defendant no.3 had taken necessary precaution before purchasing the property, but the plaintiffs did not raise any objection in respect of the public notice published in the newspaper. Therefore, prima facie, it 6 can be presumed that defendant No.3 had no knowledge of the alleged transaction between the plaintiffs and defendant No.1. According to the plaintiffs, on 14.12.2004, he had also published a notice in the local newspapers and he had contacted defendant No.1 to discuss the matter and to settle it. But it is not his plea that he had contacted defendant No.3 in this respect. According to the plaintiffs, they had come to know in December 2004 that defendant No.1 had made a gift of the suit property in favour of defendant No.2 but inspite of that they kept silent till 26.9.2007 when he filed suit for specific performance. It is material to note that on 2.4.2005, the defendant No.3 was accorded necessary sanction by the Municipal Corporation for construction and he started the construction. Learned Counsel for the respondents made a statement that by this time already four floors of the buildings have been constructed and further construction is still in progress. 6. Taking into consideration the above circumstances, prima facie, there is reason to believe that defendant No.3 is a bonafide purchaser for valuable consideration without any notice of the prior transaction of the plaintiffs with defendant No.1. Relief of specific performance of contract is 7 discretionary. In view of these circumstances, learned trial Court found that balance of convenience is in favour of defendant No.3 and not in favour of the plaintiffs and the plaintiffs are not likely to suffer irreparable loss if the relief is refused. Taking overall view of the matter, I find that the learned trial Court has exercised discretion properly and needs no interference. While it is not necessary to restrain defendant no.3 from carrying on construction work,it may be made clear that the construction will be subject to the result of the suit. 7. In view of the above observations, the Appeal stands dismissed. Construction which may be made by the defendant No.3 shall be subject to the result of the suit. 8. As the Appeal itself is disposed of, the C.A. does not survive and stands disposed of accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)