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2018 DIGILAW 2497 (BOM)

Suresh Kamte v. Sadashiv A Bhapkar

2018-10-15

A.M.DHAVALE

body2018
JUDGMENT A. M. Dhavale, J. - These two counter appeals involve substantial question of scope of right to retain possession under the Doctrine of Part Performance of the Contract. 2. The facts relevant for deciding the appeals may be stated as follows : 3. Special Civil Suit no.665 of 1986 was filed by Suresh Kamte against Sadashiv Bhapkar and his three sons. Since their status are different in two different appeals, they are referred to as per their status in this suit. Suresh Kampte plaintiff is the appellant in Second Appeal No.15 of 2003 while Sadashiv Bhapkar and three others the defendants are the respondents in the said appeal. In the suit, the plaintiff claimed that by agreement to sell dated 15.5.1981 defendant no.1 agreed to sell to him the suit property namely agricultural land of 99 ares bearing survey no.39 Division No.5 later numbered as block no.1055 with well and electric motor of three horse power situate at Loni Kadam, Vakvasti Taluka Haveli District Pune fo Rs.47,000/-. Defendant nos 2,3 and 4 are the sons of defendant no.1. There was a joint Hindu family of the defendants of which defendant no.1 was karta. The suit property was self-acquired property of defendant no.1 with which defendant nos.2,3 and 4 were having no concern., Besides, defendant no.1 put it to sell for family and legal necessities. The plaintiff p;aid Rs.10,000/- out of a consideration of Rs.47,000/- and defendant no.1 put the plaintiff in possession of the suit property thereof along with the standing surgarcane. The plaintiff was always ready and willing to perform his part of the contract. By a registered notice dated 8.9.1981 the plaintiff called upon the defendants to complete the trasnsactions and showed his readiness and willingness to pay the balance amount and bear the expenses of sale deed. Initially, on 17./6.1981 defendant lo.,1 agreed to execute the sale deed on the next day. The plaintiff provided him money and defendant no. 1 purchased stamp paper of Rs.1,85/- and provided the same for typing the sale deed. ON 18.6.1981 the plaintiff and defendant no.1 attended the Sub-Registrar''s office Haveli-I Khadakmal Lane, Pune but that time defendant no.1''s Advocate Parchpor was not present. The plaintiff went to Shivaji Nagar Court to bring his Advocate but did not return. At the same time, defendant no.l had executed the agreement in respect of other properties in favour of the plaintiff''s relatives. The plaintiff went to Shivaji Nagar Court to bring his Advocate but did not return. At the same time, defendant no.l had executed the agreement in respect of other properties in favour of the plaintiff''s relatives. Mr.Pachpor Advocate for defendant no.1 met the plaintiff and demanded Rs.5000/-for pursuading his client to execute the sale deed.The plaintiff paid Rs.1000/- to him and agreed to pay the remaining amount after execution of the sale deed. Since the plaintiff did not immediately pay the balance amount, Mr.Parchpor Advocate did not allow the defendants to complete the sale transaction. The plaintiff has paid the out-going expenses of the suit land and the said amount was to be adjusted from the sale consideration as agreed and intimated by notice dated 8.6.1981. Defendant no.1 on 14.9.1981 issued a notice reply to the plaintiff and declined to execute the sale deed stating a ground that the price of the land was deliberately shown lower than the actual price and made allegations about dishonesty of the plaintiff. Later on defendant no.3 on 8.12.1981 issued notice to the plaintiff and other defendants and claimed that during his minority, his father has entered into the transaction. It was ancestral and and belonging to the joint family. Consent of the plaintiff was not taken and there was no legal necessity. The said transaction was not binding on him. The plaintiff issued a reply dated 22.1.1982 and cleared that he had no right in the suit land and the said transaction was binding on him. The plaintiff issued a reply dated 22.1.1981 and cleared that he had no right in the suit land and the said transaction was binding on him. It was executed with the consent of all the family members and the land was self-acquired property of defendant no.1 and hence, no consent was necessary. Defendant no.1 had agreed to transfer the electric meter in the said property in the name of the plaintiff but defendant no.1 in June 1981 caused disconnection of the electric meter and thereby the plaintiff could not grow the crop of sugarcane from June 1981 onwards. He was required to pay Rs.5000/- per year for purchasing water from neighbours. The plaintiff claimed adjustment of these expenses form the price of the suit land. He was required to pay Rs.5000/- per year for purchasing water from neighbours. The plaintiff claimed adjustment of these expenses form the price of the suit land. Buy an amendment, the plaintiff claimed that defendant no.1 was supposed to obtain the zonal certificate from the Collector and the said transaction was to be executed within 15 days. Defendant no.1 never obtained such zonal certificate and therefore, the suit was not barred by limitation. Since the advocate for the defendants was assuring to execute the sale deed, the plaintiff waited and hence there was delay in filing the suit. With these pleadings the suit was filed in 1986 for specific performance of the contract, perpetual injunction restraining disturbance of its possession and in the alternative, for refund of Rs.47,000/- and also damages for disconnection of electric supply at the rate of Rs.5000/- per annum to be adjusted from the sale price and perpetual injunction to restrain the defendants from disturbing his possession. 4. Defendant nos.1 and 2 by written statement Exhibit 24 raised following defences : 1. The suit property was not self-acquired property of defendant no.1 to 4. I t was ancestral property of defendant nos.1 to 4; 2. There was no cause of action for defendant no..1 to put it for sale. 3. Though the plaintiff had obtained the agreement to sell dated 15.5.1981 from defendant no. 1 and 2, recording that earnest money of Rs 10,000/- was paid by the plaintiff, earnest of Rs.5000/- only was paid. The plaintiff''s father Fakir was a political leader, director of sugar factory and sarpanch. He used his position to harass defendant no.1 who is his maternal uncle. He caused quarrels between defendant no.1 and his brother Madhu. He by cheating defendant no.1 obtained possession of the suit land for a meagre price of Rs. 47,000/-. Defendant no.,1 spent Rs.25,000/- to Rs.30,000/- for construction of well in the suit land. Besides, he spent Rs. 10,000/-for electric motor and electric connection. He spent Rs.5000/- for sowing sugarcane crop. Thus he had invested Rs.40,000/- in the said property and the suit property was worth Rs.1,50,000/-.The plaintiff did not agree with the terms of the agreement to sell. The plaintiff had agreed to pay additional sum of Rs.5000/-. The plaintiff has deliberately made false allegation against advocate Parhpor so as to prejudice defendant no.1 with his advocate. Thus he had invested Rs.40,000/- in the said property and the suit property was worth Rs.1,50,000/-.The plaintiff did not agree with the terms of the agreement to sell. The plaintiff had agreed to pay additional sum of Rs.5000/-. The plaintiff has deliberately made false allegation against advocate Parhpor so as to prejudice defendant no.1 with his advocate. The agreement to sell was not read over to defendant no.1 and 2. It was prepared and the thumb signature of defendant nos.1 and 2 were obtained without reading out the contents. At the time of agreement to sell, defendant no.3 was major. His consent was not obtained. Permission of the District Court was not obtained for selling the interest of the minor. The suit is barred by law of limitation. 5. Defendant nos. 3 and 4 by written statement Exhibit 50 and purshis Exhibit 51 and 63 raised similar defences. In addition they denied the plaintiff''s possession and admitted that the defendants had not obtained the zonal certificate but it was not their duty. They claimed that suit is barred by limitation as the defendants had expressed their un-willingness to execute the sale deed on 17.6.1981. and the suit is filed five years thereafter. 6. The learned Civil Judge, Senior Division, framed issues at Exhibit 25. After recording the evidence, he dismissed the suit with costs and compensatory costs of Rs.5000/-. He held that the agreement to sell and payment of earnest of Rs.10,000/- were proved but the plaintiff was not ready and willing to perform his part of contract. He has also not proved damages and existence of legal necessity. 7. The aggrieved plaintiff filed Regular Civil Appeal No.924 of 1996. The learned 7th Additional District Judge, Pune by judgment dated 28.2.2000 partly allowed the appeal. He maintained the decree of refusal of specific performance and refusal to return the earnest money. But he set aside the order of imposition of compensatory costs of Rs.5000/- on defendant nos.2 3 and 4 and stated that the plaintiff was in settled possession and his possession should not be disturbed without due process of law. Hence, the aggrieved plaintiff has filed second appeal no.15 of 2003. 8. But he set aside the order of imposition of compensatory costs of Rs.5000/- on defendant nos.2 3 and 4 and stated that the plaintiff was in settled possession and his possession should not be disturbed without due process of law. Hence, the aggrieved plaintiff has filed second appeal no.15 of 2003. 8. Defendant no.1 Sadashiv, his son Laxman and one Draupadibai filed counter suit Special Civil Suit no.560 of 2000 for possession of the suit land from Suresh Kamte and claimed compensation of Rs.1,80,000/- with interest at the rate of 8% plus Rs. 60,000/- p.a. from the date of institution of the suit. They also claimed perpetual injunction restraining Suresh Kampte from creating third party interest. It was defended on defence to hold possession under the doctrine of part performance of contract. 9. This suit was partly decreed with costs by the IInd Joint Civil Judge,Senior Division, Pune on 8.4.2005. The decree for possession with electric motor pump was passed. Mesne profit was granted at the rate of Rs.1000/- per month from three years preceding the date of the suit till actual delivery of possession. Suresh Kamte was perpetually enjoined from creating third party interest in the suit land. 10. Suresh Kamte (the defendant in Special Civil Suit No.560/2000) challenged the judgment by way of Civil Appeal No.371 of 2005. By the judgment dated 12.9.2006 the learned Adhoc Additional District Judge, Pune allowed the appeal. The judgment and decree passed by the trial court was set aside and the sit was dismissed with costs. 11. The aggrieved plaintiff from the suit Sadashiv Bhapkar and his son and wife have filed the appeal no.298/2007. 12. Heard learned Advocates for both the parties. 13. The substantial question of law framed in the two appeals with my findings thereon are as follows : Second Appeal NO.15 of 2003: 14. On 24.6.2005 the following substantial question of law was framed : 1. Whether the first appellate court erred in holding that second part of Article 54 of Limitation Act i.e. period of limitation in the present suit started from the time when plaintiff came to know that performance is refused is applicable ? In the negative 2. Whether the findings of the first appellate court that the plaintiff was not ready and willing to perform his part of contract is against the evidence on record ? In the negative. In the negative 2. Whether the findings of the first appellate court that the plaintiff was not ready and willing to perform his part of contract is against the evidence on record ? In the negative. Second Appeal No.298 of 2007 1. Whether defendant no.1 is entitled to protect his possession in view of the fact that Civil Suit No.665 of 1986 for specific performance of contract is dismissed ? In the negative as he was not ready and willing to perform his part performance of the contract and as he was not entitled for specific performance. 15. Mr. Dhakephalkar learned senior counsel for Mr.Suresh Kamte the appellant in Second Appeal No.15 of 2003 has taken me through the evidence on record and submitted that facts on record indicate that the plaintiff was ready and willing to perform his part of contract whereas the defendants was not willing to perform his part of the contract. The plaintiff had attended the office of the Sub-Registrar and purchased the stamp paper and drafted the sale deed thereon. Thereafter, he had issued notice and the defendants had refused to execute the sale deed. He also argued that the defendant no.1 had not obtained zonal certificate and the plaintiff was put in possession and there was assurance by the defendant no.2 that he would execute the sale deed and therefore there was delay in filing the suit. The plaintiff was in possession of the suit property. Even if the plaintiff''s claim is barred by limitation, he is entitled for protection under section 53A under the Doctrine of Part Performance of the contract. In this regard he relied on Shrimant Shamrao Vs. Pralhad , (2002) 3 SCC 676 and Kashiram vs Mansaram , (2016) 3 MhLJ 713 . 16. Per contract, learned Advocate Mr.Dani for the defendants argued that the suit agreement provided that the sale deed was to be executed on or before September 1981. The plaintiff has not examined himself. The agreement to sell has not been produced. Defendant no.1 had approached the plaintiff on 17.6.1981 and had purchased stamp paper for execution of the sale deed. But it was the plaintiff who did not show any interest in obtaining the sale deed. He did not file the suit for five years. The plaintiff has not examined himself. The agreement to sell has not been produced. Defendant no.1 had approached the plaintiff on 17.6.1981 and had purchased stamp paper for execution of the sale deed. But it was the plaintiff who did not show any interest in obtaining the sale deed. He did not file the suit for five years. Both the lower courts have rightly recorded concurrent findings that Suresh Kamte was not ready and willing to perform his part of the contract and that his suit was time barred. Besides, he was not entitled for specific performance of the contract as the property was ancestral property. There was no legal necessity for defendant nos. 1 to 4 to sell the suit property.The zonal certificate was required for execution in of the sale deed but there is admission that the zonal certificate was refused to the plaintiff. The evidence of the plaintiff is not reliable even on the point of execution of agreement to sell. The suit land was worth Rs.1,50,000/- whereas it was shown to have been agreed to be sold for Rs. 47,000/-. Besides the plaintiff had claimed illegal adjustments from payment of balance amount which indicates that the plaintiff was not ready and wiling to perform his part contract. 17. Learned Senior Advocate Mr.Dhakephalkar also argued that defendants have not examined defendant no.1 whereas defendant no.3 who has examined himself has no personal knowledge. Reasons Point No.12 (Limitation) 18. The original suit agreement was not produced but it has not been marked as Exhibit though there was substantial evidence. The plaintiff has not examined himself but examined his brother PW 1 and 2 witnesses.PW 2 Mahadu Bhapkar and PW.3 Sopan Kute. Execution of the said agreement has not been disputed. Both lower courts have held that the said agreement has been duly proved. 19. The contention of the defendants that the said agreement was obtained by deceit from defendant no.1 or that the true price of the suit was Rs.1,50,000/- and signatures of defendant nos. 1 and 2 were obtaining without reading the contents etc has been proved by examining DW 1 and 2. The lower courts found no substance in the same. I find no reasons to interfere with the said finding. As per the agreement, the date for execution of the sale deed was fixed as 1.9.1983. 1 and 2 were obtaining without reading the contents etc has been proved by examining DW 1 and 2. The lower courts found no substance in the same. I find no reasons to interfere with the said finding. As per the agreement, the date for execution of the sale deed was fixed as 1.9.1983. Admittedly, the agreement shows that zonal certificate was required and after obtaining the certificate, the sale deed was to be executed within 15 days. 20. The agreement was executed on 15.5.1981 and the date for execution of the sale deed was fixed on 30.6.1981. When the specific date has been fixed for execution of the sale deed, the period of limitation starts on that date. Therefore, the suit for specific performance could have been filed on or before 30.9.1984.The suit has been filed on 15.4.1986. It is thus barred by limitation. 21. Even if it is assumed that limitation will start only on the date of refusal the evidence on record shows that the plaintiff had issued notice dated 8.9.1981 Exhibit 74 to the defendants and by a reply dated 14.9.1981 the defendants refused to execute the sale deed. Besides, defendant no.3 issued notice dated 8.12.1981 and claimed that the suit land was a joint family property and defendant no.1 had no exclusive right to sell it. In the circumstances, the suit could have been filed within three years from the service of notice dated 14.9.1981 and the suit filed in April 1986 is clearly barred by limitation. 22. It was argued that defendant no.3 had to obtain the zonal certificate and since the same was not obtained, the period of limitation did not begin. I find no substance in this contention. PW 1 has admitted that he had applied for zonal certificate and it was refused. He has not given the date of such refusal. When zonal certificate was refused the agreement became unforceable. 23. Besides as held in Balu Baburao Zarole & ors vs. Shaikh Akbar Shaikh Bhikan & ors , (2001) 3 AllMR 95 and Nathulal vs Phoolchand , (1970) AIR SC 546 when the specific performance cannot be granted without obtaining the consent, sanction etc the suit can be filed and can be decreed subject to the condition that specific performance would be affected only on receipt of such consent. It was not necessary to await for obtaining the said consent particularly when defendant no.1 had refused to specifically perform the contract. 24. There are concurrent findings of both the courts below that the suit is time barred and in the light of the above facts, I find absolutely no substance in challenge to the concurrent findings of the lower courts to the dismissal of the suit on the ground of limitation. Readiness and willingness 25. The contention of Mr Dhakephalkar learned senior advocate that the plaintiff was ready and wiling to perform his part of the contract, he had purchased the stamp paper and drafted the sale deed on the same and he was not present in the office of the Sub-Registrar and therefore, he was ready and wiling to perform his part of the contract at the fist blush appears attractive. Though not argued, the pleadings and evidence shows that though defendant no.1 denied in reply that the plaintiff was ready and wiling to perform his part of the contract and attended the said Sub-Registrar''s office on 17.6.1981 and it was defendant no.1 who left the Sub-Registar''s office without execution the sale deed in the written statement they have not denied these material fact.They have contested the suit by denying the real nature of the transaction under the agreement to sell dated 15.5.1981. 26. In this regard, I find that proof of readiness and willingness is a statutory condition and absence or denial by the defendants will not materially affect the liability of the plaintiff. 27. The plaintiff himself has not entered the witness box to prove the above referred facts. From the admission, it is apparent that the defendant no. 1. is maternal uncle of the plaintiff. Defendant no.1 has executed the sale deed of other lands in favour of the relatives of the plaintiff. On 17.6.1981 he pur4chased the stamp paper of Rs.1985/- for execution of the sale deed. There is a dispute as to who paid the amount for purchasing the stamp paper but neither the plaintiff nor defendant no.1 have examined themselves. The evidence shows that the defendant no.1 was ready to execute the sale deed on 17.6.1981. Even as per the plaintiff''s case defendant no.1 attended the Sub-Registrar''s office and at that time he did not decline to execute the sale deed. The evidence shows that the defendant no.1 was ready to execute the sale deed on 17.6.1981. Even as per the plaintiff''s case defendant no.1 attended the Sub-Registrar''s office and at that time he did not decline to execute the sale deed. The sale deed could not be executed at that time only because Advocate Pachpor for defendant no.1 was not present. In that case,later plaintiff should have called upon him to attend the Sub- Registrar''s office on any other date in near future. But he has not done so. He has issued notice dated 8.9.1981 and by that time, disputes arose about the nature of the property. 28. The plaintiff on one hand states that it was self-acquired property of defendant no.1 but at the same time he has joined the sons of defendant no.1 as parties to the agreement to sell as well as parties to the sale deed and parties to the suit. The plaintiff also claimed that the suit property was sold for legal necessity. Both the lower courts have rightly held that there was no evidence of any legal necessity of the family. The evidence shows that some of the sons of defendant no.1 were major but they were not consulted. The plaintiff has examined defendant no.1''s brother Mahendra as PW2, he has initially stated that it was self-acquired property of defendant no.1 but later on has given clear admission that the suit property was property belonging to the joint family. This appears to be the main reason for the total in-action on the part of the plaintiff in not proceeding with the execution of the sale deed. When the sale deed was ready and written on a stamp paper, there is no specific reasonable explanation why the plaintiff waited for five years to file a suit for specific performance. There was complete in-action of the plaintiff in seeking execution of specific performance.This in-action shows that the plaintiff was later on not willing to perform his part of the contract. In this regard, I rely on K. Narendra vs Reviera Apartments (P) Ltd. , (1999) AIR SC 2309. 35. There was complete in-action of the plaintiff in seeking execution of specific performance.This in-action shows that the plaintiff was later on not willing to perform his part of the contract. In this regard, I rely on K. Narendra vs Reviera Apartments (P) Ltd. , (1999) AIR SC 2309. 35. In our opinion, there has been a default on the part of the respondents in performing their obligations under the contract.The period lost between 25.7.1972 (the date of the agreement) and the years 197 and 1980 when the litigation commenced, cannot be termed a reasonable period for which the appellant could have waited awaiting performance by the respondents though there was not a defined time limit for performance laid down by the agreement. The agreement contemplated several sanctions and clearances which were certainly not within the power of the parties and both the parties know it well that they were the respondents who were being depended on for securing such sanctions/clearances. Added to all this is the factum of astronomical rise in the value of the land which one of the parties would have for contemplated at the time of entering into the agreement. We are not in the least holding that the consideration agreed upon between the parties was inadequate on the date of the agreement.We are only noticing the subsequent event. Possession over a meagre part of the property was delivered by the appellant to the respondents not simultaneously with the agreement but subsequently at some point of time. To that extent, the recital in the agreement and the averments made in the plaint filed by the respondents are false. On a major part of the property, the appellant was continued to remain in possession.As opposed to this, the respondents have neither pleaded nor brought material on record to hold that theirs would be case of greater hardship over the hardship of the appellant. 29. Apart from this fact, the plaint itself shows that the plaintiff was not ready to perform his part of the contract.The plaintiff claimed that defendant no.l2 had put him in possession but the defendant no.1 disconnected his electric supply and therefore he was required to purchase water for Rs.5000/- per year from his neighbour from June 1981. 29. Apart from this fact, the plaint itself shows that the plaintiff was not ready to perform his part of the contract.The plaintiff claimed that defendant no.l2 had put him in possession but the defendant no.1 disconnected his electric supply and therefore he was required to purchase water for Rs.5000/- per year from his neighbour from June 1981. He specifically pleaded that this amount of Rs.5000/- per annum from June 1981 till the date of filing of the suit i.e. in April1986 shall be adjusted against the balance amount. This cannot be the offer showing readiness and willingness to perform his part of the contract. There is no undisputed liability of defendant no.1 to pay Rs.5000/- per year to the plaintiff on account of unagreed liability to provide electric connection to the suit filed. The plaintiff has also claimed that he has paid the outgoing expenses of the suit and he was entitled to adjust the same amount also from the balance amount. In these circumstances. Readiness and willingness accompanied with demand for adjustment of compensation amount of Rs.25,000/- from the sale price shows that the plaintiff was not ready and willing to perform his part of the contract. Learned lower courts have rightly recorded concurrent findings that the plaintiff was not ready and wiling to perform his part of the contract. 30. In the light of the facts discussed herein above, I find absolutely no substance to interfere with the concurrent findings of fact recorded by the trial court. Second Appeal No.298 of 2007 Point No.3: Protection to purchaser''s possession: 31. The learned Judge of the trial Court had dismissed Special Civil Suit No.665 of 1986 of Suresh Kamte with compensatory costs and has granted no relief. The learned first appellate court in appeal arising therefrom being Civil Appeal No.924 of 1996, rightly set aside the compensatory costs of Rs.5000/- but wrongly granted perpetual injunction to protect his possession. He claimed that the plaintiff Suresh Kamte being in settled possession, his possession cannot be disturbed without following the due process of law.The injunction was granted conditionally. However, the possession of purchaser under the agreement to sale can be protected under the Doctrine of Part Performance only. The essential requisites for invoking the Doctrine of Part performance may be stated as follows : Shrimant Shamrao Suryavanshi vs Pralhad Bairoba Suryavanshi , (2002) 3 SCC 676 . 16. However, the possession of purchaser under the agreement to sale can be protected under the Doctrine of Part Performance only. The essential requisites for invoking the Doctrine of Part performance may be stated as follows : Shrimant Shamrao Suryavanshi vs Pralhad Bairoba Suryavanshi , (2002) 3 SCC 676 . 16. But there certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under section 653-A of the Act, The necessary conditions are : (1) There must be a contract to transfer for consideration of any immovable property. (2) The contract must be in writing, signed by the transferor or by someone on his behalf. (3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained. (4) the transferee must be in part performance of the contract take possession of the property or of any part thereof. (5) the transferee must have done some act in furtherance of the contract and (6) the transferee must have performed or be willing to perform his part of the contract. 17. We, are therefore of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of pa defendant taking plea under section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract is barred by limitation. 32. On going through the evidence and admissions, I find that the plaintiff has failed to prove his readiness and willingness. Besides, he has not carried out any activities in furtherance of the agreement to sell. The suit land belonged to joint family and all members and joint family were not parties to the agreement. Zonal certificate required for sale was refused by the competent authority. Thus, the plaintiff was not entitled for specific performance. In such a situation, his possession could not have been protected as has been done by the appellate Court. 33. Hence, I hold that the Doctrine of part performance cannot be invoked to protect the possession of the plaintiff Suresh Kamte. Therefor,e no fault can be found with the concurrent findings of both the Courts below whereby the suit of Sadashiv Bhapkar for possession has been decree with costs. 34. 33. Hence, I hold that the Doctrine of part performance cannot be invoked to protect the possession of the plaintiff Suresh Kamte. Therefor,e no fault can be found with the concurrent findings of both the Courts below whereby the suit of Sadashiv Bhapkar for possession has been decree with costs. 34. Besides, since Sadashiv Bhapkar the vendor has filed a separate suit claiming possession and the same has been decreed and the decree has been confirmed by the first appellate Court, there was no reason to grant perpetual injunction that the plaintiff possession should not be disturbed without due process of law. 35. As held in Thakur Bhim Singh vs Thakur Kan Singh , (1980) 3 SCC 72 for grant of mesne profits, inquiry by Court is must. Hence the order. 36. Second Appeal No.15 of 2003 is dismissed with costs. 37. Second Appeal No.298 of 2007 is partly allowed. The judgment and decree passed in Civil Appeal No.371 of 2005 by the Ad-Hoc District Judge-7 Pune dated 12.9.2006 is hereby set aside. The judgment and decree passed by the learned trial Judge in Special Civil Suit NO.560 of 2000 dated 8.45.2005 is partly restored. The direction to hand over peaceful possession of the suit land along with well an d electric motor pump pipe line etc is restored. 38. The decree directing perpetual injunction restraining the defendant no.1 from creating third party interest is set aside as being unnecessary. 39. The decree directing mesne profit by way of damages is modified. It is directed that inquiry into mesne profit shall be held under Order 21 Rule 12 of the Code of Civil Procedure, 1908 from the date of suit till actual delivery of the possession of the suit property to the plaintiff or for a period of three years from the date of this judgment whichever is earlier. The defendants shall pay costs of the plaintiff throughout.