Case: Ramesh Vajabhai Rabari Vs. Pratiksha Real Estate Pvt. Ltd. &amp; Others

is found to be in possession of the property for the last 30 years. It is no doubt true that the title and possession of VB Patel & Co. has been questioned by the petitioner as also the cancellation of the agreement of sale in his favour is further under challenge in the suit bearing Suit No. 1280/2007 which is pending trial in the High Court of Bombay. But mere pendency of the suit where the plaintiff/petitioner has failed to establish even his prima facie title as also actual physical possession on the suit land which was not proved, obviously could not establish as to how the plaintiff/petitioner in that event could be allowed to secure an order of injunction in his favour specially when he is yet to secure a decree of specific performance for the land in question and the agreement of sale in his favour itself had been cancelled on 2.4.2007 by the Defendant/Vendor. When the petitioner is yet to acquire the property in question by virtue of a decree of specific performance in order to develop it, he obviously has no semblance of title to the suit property and he is also not in possession of the property in question even as per his own case as he had accepted the agreement for the landed property on `as is where is basis which was not in occupation of even the Defendants/Vendors. Thus, the 3rd ingredient for grant of injunction which could be considered was the balance of convenience. But when the petitioner has not yet taken possession as per agreement nor any steps to develop the property for which he merely had agreement of sale which also was cancelled and had agreed to purchase the disputed property on `as is where is basis could not take possession so as to retain the property from VBP, he could not possibly claim injunction in his favour as he is still to acquire title to the property since he is yet to get a decree of specific performance. 11. It is further clear that the suit which the petitioner has filed against termination of his agreement, is yet to record a finding in favour of the petitioner that the termination of agreement was bad in the eye of law and the decree of specific performance which he has sought by way of relief in the suit is clearly an eventuality. In that view of the matter the respondent No.1 who is claiming the property in question through VB Patel & Co. at least is at an advantage to the extent that VB Patel & Co. has been able to prima facie establish that an agreement of sale had been executed in his favour by the erstwhile deceased owner Edmond DMello and possession also was delivered to him in pursuance thereof he also adduced evidence in support of his plea regarding his possession on the same for the last 30 years. 12. The petitioner in any case has neither established his prima facie title to the suit property as the agreement of sale stands cancelled and a decree of specific performance is yet to be passed in his favour, nor he is in possession of the property in spite of the development agreement in his favour who has not taken any steps to develop the property from 2005 to 2007 due to which the development agreement itself was terminated. The petitioner therefore cannot be conferred the benefit of an order of injunction in his favour in absence of any ingredient which can be held to be the determining factor for grant of an order of injunction. Consideration for awarding an order of injunction in favour of a party claiming it, is too well settled to be reiterated or discussed herein; suffice it to say that the three basic ingredients while considering an application for grant of injunction which are establishment of prima facie case, actual physical possession of the property in question and last but not the least balance of convenience and hardship are the three determining factors to claim an order of temporary injunction in the pending suit. The petitioner although failed to prove any of the three prime factors to claim injunction succeeded in obtaining an order of temporary injunction which the Division Bench of the High Court has reversed and rightly so as the petitioner obtained a development agreement from some of the successors of Edmond DMello which however was also terminated apart from the fact that the original owner Edmond DMello had already executed an agreement of sale in favour of VB Patel & Co. to whom the possession was also delivered and the respondent No.1/Pratiksha has obtained an agreement in its favour from VBP. 13. However, the decree of specific performance as already stated is yet to be passed in favour of the petitioner whereas the respondent No.1 is claiming through VBP in whose favour the erstwhile owner Edmond DMello had executed the agreement of sale in pursuance of which possession was also delivered 30 years ago. The petitioner having entered into an agreement of sale 30 years later from some of the co-sharers which agreement too was terminated on 2.4.2007 obviously cannot be granted an order of injunction restraining the respondent No.1 from claiming the property through VBP which prima facie not only has got interest in the property but also actual physical possession of the same. On the contrary, the petitioner as of now has neither any semblance of title nor has possession on the property nor prima facie case nor balance of convenience in his favour as he is yet to take possession and develop the property. 14. In view of these existing facts and circumstances of the matter, we are of the view that the learned single Judge was not justified in granting an order of injunction in favour of the petitioner and the same has rightly been reversed by the Division Bench of the High Court by assigning valid reasons.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. The petitioner in any case has neither established his prima facie title to the suit property as the agreement of sale stands cancelled and a decree of specific performance is yet to be passed in his favour, nor he is in possession of the property in spite of the development agreement in his favour who has not taken any steps to develop the property from 2005 to 2007 due to which the development agreement itself was terminated. The petitioner therefore cannot be conferred the benefit of an order of injunction in his favour in absence of any ingredient which can be held to be the determining factor for grant of an order of injunction. Consideration for awarding an order of injunction in favour of a party claiming it, is too well settled to be reiterated or discussed herein; suffice it to say that the three basic ingredients while considering an application for grant of injunction which are establishment of prima facie case, actual physical possession of the property in question and last but not the least balance of convenience and hardship are the three determining factors to claim an order of temporary injunction in the pending suit. The petitioner although failed to prove any of the three prime factors to claim injunction succeeded in obtaining an order of temporary injunction which the Division Bench of the High Court has reversed and rightly so as the petitioner obtained a development agreement from some of the successors of Edmond DMello which however was also terminated apart from the fact that the original owner Edmond DMello had already executed an agreement of sale in favour of VB Patel & Co. to whom the possession was also delivered and the respondent No.1/Pratiksha has obtained an agreement in its favour from VBP13. However, the decree of specific performance as already stated is yet to be passed in favour of the petitioner whereas the respondent No.1 is claiming through VBP in whose favour the erstwhile owner Edmond DMello had executed the agreement of sale in pursuance of which possession was also delivered 30 years ago. The petitioner having entered into an agreement of sale 30 years later from some of thes which agreement too was terminated on 2.4.2007 obviously cannot be granted an order of injunction restraining the respondent No.1 from claiming the property through VBP which prima facie not only has got interest in the property but also actual physical possession of the same. On the contrary, the petitioner as of now has neither any semblance of title nor has possession on the property nor prima facie case nor balance of convenience in his favour as he is yet to take possession and develop the property14. In view of these existing facts and circumstances of the matter, we are of the view that the learned single Judge was not justified in granting an order of injunction in favour of the petitioner and the same has rightly been reversed by the Division Bench of the High Court by assigning valid reasons.