Ramesh Dattaram Pednekar & Ors. v. Yamunabai Tukaram Lad & Ors.

appellant plaintiff filed this suit in the trial court alleging that the suit property which is more particularly described in para 1 of the plaint is situated at Mauje Shirgaon, Taluka Ambernath, Dist. Thane is owned by a joint family of Tukaram Lad. The land could not be cultivated and exploited on account of financial conditions of the vendors and that is how the vendors 2 approached the appellant – plaintiff and after negotiations an agreement for sale dated 11th June 1982 was executed and an amount of Rs.6000/- out of the total consideration of Rs.10,000/- was paid and the agreement was duly registered. 2] There were several compliances which were to be made including all the provisions of Urban Land (Ceiling and Regulation) Act, 1976 and the Bombay Tenancy and Agricultural Lands Act, 1948. In all these compliances several years have gone by and the final permissions could not be obtained until the repeal of Urban Land (Ceiling and Regulation) Act, 1976 in the year 2007 and equally with regard to other compliances, considerable time was taken.

The revenue entries mutated the names of parties including making a reference to this agreement. There has been correspondence from December 2000 and now it transpires that contrary to the assurances given to the appellant plaintiff, the power of attorney holder namely original defendant No.5 3 and original defendant No.7 have attempted to dispose of the property to their own daughter by a document styled as sale deed on 29th September 2010. It is in such circumstances that the appellants plaintiff has laid this suit for declaration that the sale deed is not binding upon them and liable to be cancelled and equally the agreement dated 11th June 1982 be specifically enforced. 3] It is in such a suit the trial court has refused an interim injunction primarily on the ground of inordinate delay. 4] Mr.Apte, learned Senior Counsel appearing for appellants would urge that the impugned order is passed on untenable grounds and if the learned Judge had rested his conclusions only on the delay, one could have possibly understood the same but he proceeds to even question the saleable rights in favour of the present appellant original plaintiff.

My attention is invited to the impugned order in this behalf. 4 5] After perusing the order under challenge with the assistance of Mr.Apte and Mr.Gadkari, who has incidentally stated that the contesting respondent No.6 has further created third party rights and development agreement dated 5th November 2012 has been executed in favour of Shri Balaji Developers. 6] Upon perusal of the order under challenge what I find is that in para 6, the learned Judge has discussed as to how the suit has been filed in the year 2011 seeking specific performance of an agreement of sale dated 11th June 1982. The vendor had expired on 1st September 2000. Although, there may be an error in the order in referring to certain document of 1980, the fact remains that the learned Judge has concluded that prima facie agreement for sale is of 1982 and the suit is filed in the year 2011. Even after the death of the vendor in the year 2000, the suit is belated and, therefore, a 5 prima facie case was held not to be made out and equally, the balance of convenience was not held to be in favour of present appellant.

The finding of irreparable loss and injury was accordingly rendered against the appellants. 7] I do not find any error or infirmity in the order to the extent it records that the appellants have failed to make out a prima facie case for grant of interim injunction. The learned Judge may have referred to the saleable interest but that is in the context of further alienation attempted and by the sale deed which is questioned. Since that is styled as sale deed that possibly the learned Judge entertained a doubt with regard to the saleable interest. That finding may strictly not be in accordance with law and was not required to be rendered, in any event at an interlocutory stage. Yet, I am of the opinion that on the point of delay and which could be termed inordinate prima facie, in this case, the learned Judge was right in refusing the interim injunction. Such an order does not suffer 6 from any error or infirmity calling for my interference in appellate jurisdiction.

The appeal from order is, therefore, dismissed. It is clarified that all observations are tentative and prima facie and shall not influence the court while trying the suit. Equally, the learned Judge should not influence himself while trying the suit with any of the observations made either by this Court or by the trial court.

(S. C. DHARMADHIKARI, J)