:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE APPEAL FROM ORDER NO.962 OF 2007 APPEAL FROM ORDER NO.962 OF 2007 APPEAL FROM ORDER NO.962 OF 2007 Mr.Anant Arjun Thakker. ..Appellant. v. Mr.Pravin V. Sheth & Ors. ...Respondents. Mr.K.K.Malpathak a/w Shri Sandesh Deshpande , advs. for the Appellant. Mr.P.K.Dhakephalkar Sr.Counsel a/w. Sanjay S. Patil, advs. for the Respondent Nos.1 and 2. Mr.Rahul S. Thakur , adv. for the Respondent No.4. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 11th January, 2008. DATE: 11th January, 2008. DATE: 11th January, 2008. P.C. P.C. P.C. 1. The appellant is the original plaintiff while the respondents are original defendants. According to plaintiff, he entered in the agreement with the defendant no.1 for purchase of about 100 acres of land. As per the memorandum of understanding entered into between the plaintiff and defendant no.1. Price was agreed to be Rs.85,000/- per acre. The plaintiff paid an amount of Rs.5 lakh as earnest money. 50% of the balance amount was to be paid within 15 days of vendors getting title clearance certificate and the balance 50% was to be paid within three months from the date of MOU. The plaintiff filed suit for specific performance of the contract for sale of 58 acres of land against the :2: defendant nos.1 to 3. Pending the suit the defendant nos.1 to 3 have allegedly sold away the property to the defendant no.4 to 6. Plaintiff filed an application seeking injunction restraining the defendants from creating any third party interest pending the suit. 2. It was contended on behalf of the defendants that the defendant no.1 was not alone owner of the suit property. He is owner of hardly 10 acres of land out of the suit property. Remaining property belongs to his wife and son, who are defendant nos.2 and 3 and they are not parties to MOU. Even though the MOU was about sale of 100 acres of land, the suit was filed for 58 acres of land. In all these circumstances, the plaintiff is not entitled to get any reliefs. After hearing the parties, the learned trial Court rejected the application. Hence, the plaintiff has preferred the present appeal from order. 3. Heard the learned counsel for the parties. 4. There is sufficient documentary evidence to show that a MOU was entered into between plaintiff and the defendant no.1 Pravin whereby Pravin agreed to sell 100 acres of land at the rate of Rs.85,000/- per acre. Terms of the agreement about the payment are already noted above. There is correspondence between the parties, which also provides corroboration to this :3: agreement. It appears that on 2-2-2006 through advocate Vijay Patil, inspection of record was taken to find out title and accordingly title certificate was issued by Advocate Patil. In the plaint title of Parties is clearly shown. It appears that the defendant no.1 Pravin was the sole owner of properties described in part A of paragraph 3 of the plaint. Area of these four pieces of land is shown to be 3 H 27 R 9 Points. In part B of that paragraph are 12 pieces of land admeasuring 13 H 58 R. That property is jointly owned by the defendant no.1 Pravin and defendant no.2 Vilina. Part C of paragraph 3 describes in all eight properties area of which is 6 H 51 R and the defendant no.3 Bhavesh, who is son of the defendant no.1, is shown to be exclusive owner of the property. Total of the three properties comes to 23 H 36 R 9 Points equivalent to approximately 58.5 acres. 5. Even though the defendant no.1 appears to have represented that he was owner of 100 acres of land alongwith others and he also claimed that he was representing his wife and son while entering into MOU, it appears that the total land was not 100 acres of land but 58 acres only. From the MOU it is clear that the defendant no. 2 and 3 were not parties to that document. There is nothing to show that they had executed any power of attorney in favour of the defendant no.1. In such circumstances, the defendant :4: no.1 had no legal authority to enter into agreement for sale of that property, which exclusively belongs to his son or of which his wife was joint owner alongwith himself. Of course, there was no restriction in respect of the property, which exclusively belongs to the defendant no.1. As pointed out earlier, the price of land was fixed at Rs.85,000/- per acre and admittedly the defendant no.1 has already received an amount of Rs.5 lakh as earnest money from the plaintiff. The total area belonging to the defendant no.1 was 3 H 27 R 9 points, which is approximately 8 acres 7 R. There was no difficulty in execution of sale deed as far as this property is concerned. It appears that after the defendant no.1 had entered into MOU or agreement for sale with the plaintiff, the defendant nos.1 to 3 also entered into agreement with the defendant nos.4 to 6 and the defendant nos.1 to 3 actually executed conveyance deed of the suit property in favour of the defendant nos.4 to 6, after filing of this suit for specific performance of the contract. 6. The plaintiff could not claim any right or any relief in respect of the property, which does not belong to the plaintiff no.1 alone but the plaintiff could certainly seek a relief as far as the property, which exclusively belongs to the defendant no.1. Therefore, the trial Court was not right in refusing to grant any :5: relief in respect of property shown in part A of paragraph 3, which exclusively belonged to the defendant no.1 prior to sale of the same in favour of the defendant nos.4 to 6. It appears that if that much property is taken into consideration, the plaintiff had already paid almost 75% of the price of that land. In such circumstances, it will be necessary to protect the interest of the plaintiff pending the suit in respect of atleast that land. 7. In the result, appeal is partly allowed. The respondent nos.4 to 6 are hereby restrained from creating third party interest in respect of the property shown in Part A of Paragraph 3 of the plaint pending the final hearing and disposal of the suit. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)