-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 102 OF 2008 APPEAL FROM ORDER NO. 102 OF 2008 APPEAL FROM ORDER NO. 102 OF 2008 ALONGWITH ALONGWITH ALONGWITH CIVIL APPLICATION NO. 127 OF 2008 CIVIL APPLICATION NO. 127 OF 2008 CIVIL APPLICATION NO. 127 OF 2008 IN IN IN APPEAL FROM ORDER NO.102 OF 2008 APPEAL FROM ORDER NO.102 OF 2008 APPEAL FROM ORDER NO.102 OF 2008 IN IN IN NOTICE OF MOTION NO. 2962 OF 2007 NOTICE OF MOTION NO. 2962 OF 2007 NOTICE OF MOTION NO. 2962 OF 2007 IN IN IN B.C.C.C.L.C.SUIT NO. 3120 OF 2007 .C.SUIT NO. 3120 OF 2007 .C.SUIT NO. 3120 OF 2007 Sayyed Mohfooz Ali .. .. Appellant. (Orig.Defendant No.1) V/s. 1. Mehmood Ahmed Siddiqui & Ors. .. Respondents. --- Mr.N.N. Walawalkar, Sr.Counsel a/w. Shri Bipin Joshi for the Appellant. Mr.A.R.Shaikh for Respondent Nos. 1 & 2. --- CORAM : J. H. BHATIA, J. CORAM : J. H. BHATIA, J. CORAM : J. H. BHATIA, J. DATED : 04th February, 2008. DATED : 04th February, 2008. DATED : 04th February, 2008. P.C. : P.C. : P.C. :- . Heard the learned counsel for the parties. 2. The Appellant, who is the original defendant No.1, has filed this Appeal against the order of injunction passed in Notice of Motion taken out by the plaintiffs who are the respondent Nos.1 and 2 before this court. -: 2 :- 3. Admittedly, defendant No.2 is the original owner of the suit property bearing C.T.S.No.122-A, 122-A/1 to 7, admeasuring 923.7 sq.mtrs. together with structures thereon consisting of eight rooms. The plaintiffs claim to have purchased the property from the defendant No.2 under a conveyance deed which is executed and registered on 10.10.2006. According to them the defendant No.1, who is present Appellant, is a tenant in respect of the room Nos. 1,2,6, 7 & 8. The defendant No.1 has no concern with the remaining three rooms and the remaining open land. However, he was trying to encroach upon the said property. It is contended that the defendant No.1 has filed Suit No.1177/2001 against the defendant No.2 for specific performance of the agreement alleged to have been executed by defendant No.2 in favour of defendant No.1 for sale of the portion of the suit property. The defendant No.1 had taken out a Notice of Motion No.832 of 2001 for interim relief but the High Court had granted him protection only in respect of the five rooms which are in his possession as a tenant. The defendant No.1 tried to make encroachment by making unauthorised construction, attaching the room Nos. 6 and 8 but that construction has been demolished by the Municipal Corporation and it also imposed demolition charges on him. -: 3 :- 4. The defendant No.1 interfered and obstructed the workers of the plaintiffs from doing their job on the suit premises and the matter was reported to the police. In these circumstances, the plaintiffs sought temporary injunction, restraining the defendant No.1 from causing further interference in possession over the suit premises and the open land. 5. The defendant No.1 contested the notice of motion by filing a reply. He admitted to have filed suit for specific performance against the defendant No.2 and that suit is still pending. According to him, he is already in possession of the whole of the land and he has also made certain constructions on the same. It is contended that in respect of certain structure the Corporation had issued a notice for demolition and that notice was challenged by the plaintiffs and a protection against demolition has been granted to the defendant No.1. Further it is contended that the plaintiffs have purchased the property with full knowledge of the suit filed by the defendant No.1 for specific performance of the contract and also possession of the defendant No.1 on the suit property. Therefore, the plaintiff cannot now seek perpetual or temporary injunction which would amount to ejectment of the defendant No.1 from the suit -: 4 :- property. 6. After hearing both the parties, the learned trial court accepted that the defendant No.1 is in possession of five rooms for which protection is already given by the High Court in the suit No. 1177/2001. It was also observed that he is not in possession of the remaining portion of the suit property and to that extent the trial court granted temporary injunction and restrained the defendant No.1 from interfering use, occupation and possession of the plaintiffs over the suit premises. 7. Heard the learned counsel for the parties and perused the copies of the record filed alongwith the Appeal. Admittedly defendant No.2 was the owner of the suit property consisting of eight rooms and some open land. Defendant No.1 filed suit No.1177/2001 in the High Court for specific performance of the alleged agreement for sale in his favour. In that suit, he had taken out notice of motion No.832/2001 for restraining the defendants from causing interference in his possession over whole of the property. However, after referring to the record, in para 4 of the order dated 3rd of April,2003 passed in the notice of motion, the learned single Judge of this court observed that the -: 5 :- present defendant No.1 was in occupation of only five rooms and not eight rooms as a tenant. The said notice of motion was allowed only in respect of those five rooms and not remaining three rooms and remaining open land. That order was not disturbed in the Appeal filed by the parties. From the record it appears that the defendant No.1 had raised certain structure but that structure was demolished by the corporation. It appears that the defendant No.1 again raised some structure in respect of which the Municipal Corporation had issued a notice of demolition to him. Defendant No.1 challenged that notice in L.C.Suit No. 1169/2004 and in the notice of motion taken out in that suit, the City Civil Court had granted protection against the demolition of that structure. Of course in that suit, the defendant No.2 was not a party. As the plaintiffs in the present suit came in possession in the year 2006, they were not party to that suit. In view of this it is clear that the defendant No.1 is admittedly in possession of the five rooms as a tenant and protection against dis-possession has already been granted by the High Court. Besides this, rightly or wrongly the defendant No.1 has also made certain construction on the remaining open land and a protection has been granted by the city civil court against demolition of that structure. As that suit against the Corporation is still pending and the order -: 6 :- passed by the city civil court against the corporation is also in force, it could be said that the protection is available to the defendant No.1 as long as that suit against the Corporation is not finally disposed of. 8. However, so far as the remaining property is concerned, there is nothing to show that the defendant No.1 is in possession. The defendant No.1 has filed the suit only for a specific performance of the contract of sale. The Appellant-defendant No.1 cannot claim to have possession over that property as long as decree for specific performance is not passed and the decree is not finally executed. Pending the suit filed by the defendant No.1 for specific performance, the defendant No.2 has already sold the suit property to the plaintiffs who claim to have received possession also. As they purchased the property pending the suit filed by the defendant No.1 for specific performance, they purchased the property subject to the result of that suit and naturally if the defendant No.1 succeeds the plaintiffs will be affected by that decree. In view of the protection already available to the defendant No.1, in respect of five rooms and certain structures, it may be presumed that when the plaintiffs purchased the property, the defendant No.1 was already in possession of those five rooms and the structure and to that extent -: 7 :- the plaintiffs could not get injunction against the defendant No.1. However, so far as remaining property is concerned, I do not see any valid reason why temporary injunction could not be granted to the plaintiffs. Therefore, I find that subject to the above observations, the order passed by the trial court appears to be correct and needs no interference. Any development which the plaintiffs may carry out on the suit property shall be naturally subject to the result in the civil suit No. 1177/2001 filed by the defendant No.1. 9. With the above observations, the Appeal stands dismissed. 10. At this stage, the learned counsel for the defendant No.1/the appellant seeks stay of the injunction order. Request is refused. (J.H.BHATIA, J) .....