1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 806 OF 2007 W I T H CIVIL APPLICATION NO. 1128 OF 2007 IN APPEAL FROM ORDER NO. 806 OF 2007 Shri. Arjun Kisan Godambe .......Appellant Verus Smt.Chandrabhaga Narayan Jadhav & Ors. ........Respondents Mr.G.S.Godbole, adv.for appellant. Mr.Vilas B. Tapkir, adv.for respondents. Coram: Smt.R.P.SondurBaldota, J. Dated : 18 th September, 2008. P.C. : 1. By this Appeal from Order, the appellant challenges correctness and legality of the interim order dated 13th September, 2007 by which the trial court rejected the application for interim reliefs in a suit for specific performance. 2. The agreement of which the appellant seek specific performance is in 2 the nature of Visar Pavati dated 1st November, 2002. By the said document, respondents no.1 to 9 who are the owners of the suit property admeasuring 2 acres and 10 gunthas (90 R) agreed to sell the same to the appellant for the consideration at the rate of Rs.11 lacs per acre. The document records that there is an encroachment on some portion of the land which encroachment has to be got removed by the vendors. It further states that the purchasers would get the land surveyed and measured and have the same divided into different plots, which plots would be sold to third parties. As per Clause 4(c) of the document, the appellants had from time to time upto the date of the document paid a sum of Rs.80,000/- either in cash or by cheque. The details of the payment of Rs.80,000/- by cash or by cheque have been stated neither in the document nor in the plaint. The appellant alleges that on 25th April, 2007 a public notice appeared in the newspaper that respondents no.1 to 9 had agreed to sell the suit land to respondent no.1 and therefore they filed the instant suit. 3. Respondents no.1 to 9 contend that the suit land has been allotted them by the collector for personal cultivation as they belong to backward class and the same cannot be sold without prior permission of the collector. They deny that they have agreed to sell the suit land to the appellant for any consideration. They also deny that they have received a sum of Rs.80,000/- from the appellant. They do not dispute their thumb impressions on the visar pavati, however, they 3 allege that their thumb impressions were obtained on the visar pavai fraudulently. They contend that the suit land is coveted by many people from the village including the appellant. The appellant represented that he would protect them against any kind of encroachment on their land by any person and obtained their thumb impressions on a document. These respondents were neither made aware of the contents of the documents nor given a copy thereof. Since, the respondents no.1 to 9 allege that there is no agreement arrived at between them and the appellant for sale of the suit property, and the document of visar pavati was got executed by the appellant by playing trick upon them, it will have to be seen whether there is any material before the court to prima-facie believe the case of the appellant. 4. According to the appellant he has paid a sum of Rs.80,000/- to the respondents by the date of the document either in cash or by cheque. The details of such payment are not forthcoming. The plaint is also silent as to from which point of time, the payment started and what was the purpose of the payment until 1st November, 2002 because it is not the case of the appellant that there was any understanding arrived at between the parties prior to 1st November, 2002. Mr.Godbole, learned counsel for the appellant has referred to some entries in the bank statement of the appellant. However, unless particulars are disclosed in the plaint, at this stage, it would be difficult to relate the same to the amount stated in the visar pavati. The existence of agreement of sale can be 4 tested on one more ground i.e. on the steps taken by the parties pursuant to the document. Under the document, the appellant was to get the land surveyed and measured for the purpose of dividing it into different parts. No such steps are taken by the appellant. Respondents no.1 to 9 had the responsibility of removing the encroachment on the lands. There is no step taken by respondents no.1 to 9 either. Over the period of last five years, the appellant has not even called upon these respondents at any point of time to remove the encroachment or even made any enquiries as regards the removal of encroachment. Thus, prima-facie it is seen that there are no steps whatsoever taken by either parties pursuant to the agreement. 5. The appellant claims that since the execution of the agreement, he has made further payment of Rs.3,20,000/- from time to time in cash to respondents no.1 to 9. He relies upon his own cash vouchers in support of the claim. The respondents deny receiving any money from the appellant. Since, the claim of payment made is in cash and the only evidence in support of the same is the cash voucher, it would be difficult to accept on a prima-facie view that the payment was infact made and received by these respondents. There is also nothing to indicate that this payment was made towards the consideration payable under the visar pavati, because the visar pavati makes specific provision for the payment of balance consideration. 5 6. In these circumstances, the impugned order rejecting the application for interim reliefs cannot be faulted with. Mr. Godbole has pointed out some flaws in the reasons given in the impugned order for refusal of the interim relief. The learned Trial Judge , it appears has held that the visar pavati is not an executable agreement and hence no specific performance of the same is possible. Mr.Godbole, submits that all the necessary ingredients of an agreement of sale are present in the visar pavati i.e. description and identification of the property to be sold, the price at which the same is to be sold and the agreement to sell. Thus, the appellants have made out an arguable case that the visar pavati is an agreement of sale and not a mere receipt. However, for the reasons stated above, there can be no interim reliefs in favour of the appellant. Hence the order. 7. The Appeal from Order is dismissed in limine. With the dismissal of the Appeal from order, the Civil Application does not survive. The same is accordingly disposed off. [Smt.R.P.SondurBaldota, J] 6