abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1957 OF 2008 IN SUIT NO. 1692 OF 2008 Achutkumar Shantilal Inamdar & Ors. .. Plaintiffs V/s Ashok Timber Mart & Anr. .. Defendants Mr. A.R. Shaikh for the plaintiffs. Mr.Cherag Balsara with Ms.J. Durve i/b K. Ashar & Co. for the defendants. CORAM : D.G. KARNIK, J. DATE : 16TH JUNE 2008 P.C. P.C. P.C. : 1. Heard the learned counsel for the parties. 2. By this motion, the plaintiff seeks injunction restraining the defendants from selling, transferring, alienating or creating third party interest in respect of the suit property admeasuring about 520 sq.m., more particularly described in Exhibit-B to the Plaint. 3. The plaintiffs and their predecessors were the original owners of the property. By a deed of - 2 - conveyance dated 19th April 1971, the defendant no.2 purchased from the plaintiff no.1 and late Harishchandra Shantilal Inamdar the property bearing survey no.26 admeasuring 9844.6 sq.m. Possession of the purchased property was also delivered to the defendants. According to the plaintiffs, the defendants have committed encroachment to the extent of 520 sq.m. of the adjoining property belonging to the plaintiffs as shown in the plan Exhibit-C to the Plaint and are trying to sell that encroached portion. The defendants have denied having committed any encroachment and claim that they are owners of the suit property and are in possession thereof since the year 1971 in their own right and they cannot be restrained from selling the suit property which they have purchased from the defendants. 4. The plaintiffs have not got the property measured from the government surveyor. Though the counsel submits that the property was measured and surveyed by a private surveyor at the instance of the plaintiffs, they have not produced on record any private survey report to show that the defendants have committed the encroachment as alleged. Under order Order 7 Rule 3 of the Code of Civil Procedure, the plaintiffs were required to describe the encroached property so as to properly identify it with boundaries. The description - 3 - is scanty and not enough to identify the property. The length and the breadth of the encroached property are not mentioned. On the facts on record, it is difficult to accept the bare words of the plaintiffs that the defendants have committed encroachment to the extent of 520 sq.m. on their property and to grant injunction on that basis. 5. According to the defendants, they are the owners of the property bearing survey no.26/1 which has since been converted into City Survey no.336 (part). They cannot be restrained from selling the property which they have purchased. In my opinion, there cannot be injunction restraining the defendants from selling suit the property, of which they claim to be owners. They are free to sell the property and if they sell any property in excess of what they have purchased and/or what does not belong to them, the purchaser thereof cannot have title in excess of the portion. The plaintiffs are sufficiently protected by section 52 of the Transfer of Property Act. 5. In the circumstances, no injunction can be granted at this stage. The motion is accordingly dismissed with costs. (D.G. KARNIK, J.)