1. This appeal from order is filed against the order dated 19.3.2011 passed by the 5th Additional Senior Civil Judge, Rajkot below Exh.5 in Regular Civil Suit No.132 of 2008, whereby the injunction application of the appellant-original plaintiff was dismissed. The appellant will be referred to as the 'original plaintiff' and the respondents will be referred to as the 'original defendants' for the sake of convenience.
2. The brief facts leading to filing of this appeal are that the defendant no.1 who is original owner of the land entered into agreement to sell on 14.4.1998 with defendants no.2 to 4 and defendant nos.2 to 4 paid Rs.6,85,000/- towards consideration for the land admeasuring 1500 square meters. Thereupon, the defendants no.1 to 4 entered into agreement to sale with the plaintiff on 11.10.2001 and plaintiff paid Rs.3,50,000/- to defendant no.1. The plaintiff has filed the suit with the injunction application for specific performance of the agreement to sell.
3. Learned advocate Mr.Shah for the appellant submits that the trial Court has committed error in holding that suit of the plaintiff is not maintainable and, therefore, the plaintiff is not entitled to get injunction. It also submitted that though original defendants no.1,3 and 4 had admitted suit transaction and have declared that they are ready to execute the sale deed as prayed for in the suit but as original defendant no.2 is not agreeable to execute the sale deed, the trial Court has rejected the injunction application. He also submitted that the suit land is permitted to be used for non-agricultural use as per the non-agricultural permission granted on 19.2.2009 and the trial Court has committed error in holding that on the date of agreement to sell the land was agricultural land. On the date of the agreement to sell, the land was agricultural land and so it could not be sold.
4. In support of his submissions, learned counsel for the appellant relied on following judgments:
1. Narayanaru & Anr.V/s Thankayyan Nadar & Ors., reported in JT 1988(1) SC 67.
2. Maharwal Khewaji Trust (Regd.) Faridkot V/s Baldev Dass, reported in AIR 2005 SC 104.
3. Ibrahim Shah Mohamad and Ors. V/s Noor Ahmed Noor Mohamed and Ors., reported in 1983(2) GLR 961.
4. Adani Exports Ltd. V/s Hindustan Organic Chemicals Ltd., reported in 2000(3) GLR 2759.
5. On the other-hand, learned Senior Counsel Mr.Oza for the respondents submits that the order passed by the trial Court is legal and proper. He submitted that the original owner of the suit land is the heir and legal representative of respondents no.1,2 and 3 and they entered into agreement to sell with respondent no.1-original defendant no.1 and original defendant no.1 though not owner of the property but only acquired limited right through agreement to sell from the original defendant no.2/1 to 2/4 and so no agreement took place between the original owner and present appellant-plaintiff and so when original owner has not executed agreement to sell in favour of the present appellant-plaintiff, he is not entitled to get any relief of injunction against the original owner along with other defendants. He further submits that the original owner has never executed the agreement to sell in favour of appellant- plaintiff and so present appellant-plaintiff is not entitled to get any relief by way of injunction against any of the original defendants. In support of his submissions, Mr.Ozq has placed reliance on the following judgments.
1. Rambhau Namdeo Gajre V/s Narayan Bapuji Dhotra(D) by Lrs., reported in AIR 2004 SC 4342.
2. Maheshbhai S Vadhvani V/s Jagdishbhai Manilal Bhojani and Anr., reported in 2010(1) GLR 628.
6. Heard learned counsel for the parties and have perused the file.
7. In the case of Rambhau Namdeo Gajre (supra), it is held that:
“It is an admitted case of the parties that the plaintiff/respondent had entered into an agreement of sale with `P' and who had taken possession of the suit land in part performance thereof. Sale deed has not been executed and registered in his favour. `P' did not take any steps for getting the agreement of sale specifically enforced and obtain a registered sale deed in respect of the suit land. Within a period of 2 ½ months he executed a similar agreement of sale in favour of the appellant and put him in possession of the suit land. `P' did not have any right to enter into an agreement of sale with the appellant as he was not the owner of the suit land. The appellant did not care to ascertain the title of `P' to the suit land before entering into the transaction with him. There was no agreement between the respondent/owner and the appellant in connection with the suit land. The doctrine of part performance enshrined in S.53-A of the Act could not be availed of by the appellant against the respondent with whom he has no privity of contract. The doctrine of part performance as contemplated by S.53-A can be availed of only by the transferee or any person claiming under him. The appellant not being the transferee within the meaning of S.53-A of the Act could not invoke the equitable doctrine of part performance to protect his possession as against the respondent/owner.”
8. It is rightly held by the trial Court that the original owner has not signed agreement to sell which took place between present appellant-plaintiff and defendant no.1 and so from any angle, it could not be said that contract took place between the present appellant and the original owner of the property. It is settled legal position that through the agreement to sell any person will not acquire any right, title or interest in the property and so as in this case, agreement to sell took place between the appellant- plaintiff and defendant no.1. Admittedly, though defendant No.1 was not owner of the property, he entered into agreement to sell with the appellant - plaintiff. It can be seen from the impugned order that other defendants gave consent for passing order of status-quo, but it is rightly held by the trial Court that even if other defendants gave consent for passing order of status-quo, then also appellant-plaintiff is not entitled to get relief of injunction.
9. In view of the above discussion, the findings given by the trial Court are legal and proper and not required to be interfered with and therefore, this appeal is dismissed. It is needless to say that the suit is pending and any transaction that may take place during the pendency of the suit, it will be subject to outcome of the suit.
( M.D.Shah, J ) srilatha