1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 121 OF 2010 Gayatri D/o Tulsidas Solkepalli Versus Dharamchand S/o Kanhayallal Solanki and others. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. APPEAL FROM ORDER NO.: 121 OF 2010 Gayatri D/o Tulsidas Solkepalli Versus Dharamchand S/o Kanhayallal Solanki and others. *** Mr. Amit Mukhedkar, Advocate for the Appellant. Mr. S. R. Choukidar, Advocate for Respondent No.1. Shri Sanjay Mundhe, Advocate for Respondent No.3. *** CORAM: K. U. CHANDIWAL, J. DATED: 9th DECEMBER, 2010. 1. Heard. In a suit for specific performance of contract, where plaintiff came with a case of receiving possession under a valid possession receipt, disputed by the owner, clamp of injunction is questioned by the vendor/ owner of the property. 2. The learned counsel for the Appellant criticised grant of injunction on the count 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 121 OF 2010 Gayatri D/o Tulsidas Solkepalli Versus Dharamchand S/o Kanhayallal Solanki and others. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. that the possession receipt needs to be read in proper perspective. It projects a perpetual document of sale which could not dwell upon by the learned Judge. The plaint is not describing the nature or the total measurement of the property. The amount to H.D.F.C./ financer was to be paid by the plaintiff, it has not been so adhered, H.D.F.C., the financer was a necessary party in the proceeding and it is not arrayed. Consequently, the injunction is illegal. 3. These contentions of the learned counsel for the appellant does not sound good on the legal footing. The Honourable Apex Court in the matter of "S. Kaladevi V/s V. R. Somasundaram and others" reported in 2010 (5) Mh.L.J.320 illustrated the provision vis-a- vis section 49 of Registration Act and section 91 of the Evidence Act. The 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 121 OF 2010 Gayatri D/o Tulsidas Solkepalli Versus Dharamchand S/o Kanhayallal Solanki and others. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Honourable Apex Court has said, such document can be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. The second limb that description of property is not matching as no measurements are given, is again illusory as the agreement of sale and the receipt of possession between the parties illustrate entire description of the properties with four boundaries. There is no mist and meh- hem between the parties about identity of the property. The non-impleading H.D.F.C. is not imperative. It is between the vendor and as he has availed the loan to meet obligation and it would be a responsibility of the plaintiff as purchaser to discharge the remittance as was agreed which incidentally have been credited to H.D.F.C. Said financer is not a necessary party in a proceeding 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 121 OF 2010 Gayatri D/o Tulsidas Solkepalli Versus Dharamchand S/o Kanhayallal Solanki and others. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. seeking specific performance of contract so long as it does not obliterate provisions of section 3 (a) of the Specific Relief Act. 4. The survey of facts illustrate, the finding recorded by the learned Judge need not be faulted though at two places he has referred that there was no parting of possession in favour of the plaintiff/ respondent and in the subsequent paragraph accepts such possession. However, the fact remains, prima facie, the document supports contention of the plaintiff/ respondent to be in possession of the property. 5. The request of Mr. Mukhedkar to maintain statusquo in relation to the property will be adding fuel in the situation, I am informed that the appellant has also initiated proceeding in terms of section 145 of the Code of Criminal Procedure. Appeal from 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO.: 121 OF 2010 Gayatri D/o Tulsidas Solkepalli Versus Dharamchand S/o Kanhayallal Solanki and others. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Order lacks merit. Dismissed. 6. Civil application No. 12591 of 2010 stands disposed of. [K. U. CHANDIWAL, J.] Dated:09/12/2010. ans/121