Bombay High Court

MRS. SURINDER KAURK J. CHHABARA AND ANR.versusLATE MERWAN FEROZE CAMA (DEAD) THR. LRS. AND OTHERS

Decided: 17 June 2026
Disposal: Disposed Off
Bench: SHARMILA U DESHMUKH

Holding

The trial court’s discretion in rejecting the interim injunction was proper; the appeal is dismissed.

Summary

The appellants, Mrs. Surinder Kaur Chhabara and Mr. Yashwant Sawant, appealed against the trial court’s order rejecting their interim injunction application in a suit concerning undivided shares of land originally owned by the late Merwan Feroze Cama. The suit sought specific performance of sale agreements that were contingent on the outcome of a separate civil suit (RCS No. 4915 of 2012) which had been withdrawn. The trial court held that the plaintiffs failed to establish a prima facie right to the property, had not claimed partition or separate possession as required by Section 22 of the Specific Relief Act, and had not provided a proper description of the suit property, rendering any injunction a blanket restraint. The court also noted that the agreements became void upon the withdrawal of the underlying suit and that issues of alleged fraud were matters for a separate restoration application. Consequently, the appellate court affirmed the trial court’s discretion and dismissed the appeal.

Issues considered

The plaintiff’s entitlement to specific performance of sale agreements concerning an undivided share of land.
Whether the plaintiff was required to claim partition or separate possession under Section 22 of the Specific Relief Act to obtain an injunction.
The adequacy of the description of the suit property for granting an interim injunction under Order VII Rule 3 of the CPC.
The effect of the withdrawal of the underlying suit (RCS No. 4915 of 2012) on the enforceability of the contingent sale agreements.
The relevance of alleged fraud in the withdrawal of the underlying suit to the present interim injunction application.

Legislation cited

Code of Civil Procedure, 1908 — s. Order VII Rule 3
Income Tax Act, 1961 — s. 281
Indian Succession Act, 1925 — s. 213, 57
Specific Relief Act, 1963 — s. 22

Subjects

interim injunction
specific performance
undivided share
partition
Section 22 Specific Relief Act
property description
contingent contract
withdrawal of suit
fraud allegation
real estate dispute

Judgment

Digitally
signed by
SHAGUFTA
SHAGUFTA QUTBUDDIN
QUTBUDDIN PATHAN
PATHAN Date: AO-476-2026-Corrected.odt
2026.07.01
15:53:58
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.476 OF 2026
WITH
INTERIM APPLICATION NO.3727 OF 2026
IN
APPEAL FROM ORDER NO.476 OF 2026

1. Mrs. Surinder Kaur J. Chhabara
Age: 58 years, Occ: Business
Residing at: 103, Rose Building.
Flower Valley, Wanawadi,
Pune 4110401

2 Mr. Yashwant Baburao Sawant
Age: 59 years, Occ: Business …Appellants/
R/at: Sawant Villa, Bhoir Colony, Orig. Plainti/s
Chinchwad, Pune, 411033
Versus
1. Late. Merwan Feroze Cama
Represented through his Legal Heirs:-
a. Smt. Laxmi Merwan Cama
Age: 67 years, Occ: Agri. & Household
b. Mr. Soli Merwan Cama
Age: 48 years, Occ: Agriculture
c. Mrs. Rattan Merwan Cama
Age: 50 years, Occ: Agri. & Household
Nos. (a) to (c) residing at:-407,
New Market Plaza, Clover Village, 66-67
Wanawadi, Pune 411040
Also through his alleged Legal
Representative
d. CA Arun Mehta
Age: 62 years, Occ:- Professional Residing at:-
A-505, Bharat Sky Vistas,
DN Nagar, Andheri (West), Mumbai-400053

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2. M/s. Ganesh Construction Company
A partnership Arm formed under provisions
of the Indian Partnership Act, 1932 and
having itsoCce at:-
Mittal Towers, 16th Floor, 210, Nariman Point,
Mumbai-400 020
Represented through its Partners:-
a) Mrs Umadevi Omprakash Mittal
Age:70 years Occupation: Business
b) Mr. Kishan Maliram Mittal
Age:73 years, Occupation: Business
c) Mr. Arun Maliram Mittal
Age:66 years Occupation: Business
d) Mr. Badal Maliram Mittal
Age:71 years Occupation: Business
e) Mr. Rahul Rajendra Mittal
Age: 50 years Occupation: Business
f) Mrs. Kusum Mahendra Mittal
Age: 70 years, Occupation: Business
g) Mr. Ramesh Brahmadutt Mittal
Age: 73 years Occupation: Business
h) Mr. Ashwin Ramesh Mittal
Age:47 years Occupation: Business
I) Mr. Suresh Brahmadutt Mittal
Age:71 years Occupation: Business
j) Mr. Shailendra Parmeshwar Mittal
Age:70 years Occupation: Business
k) Mrs. Shalini Anil Mittal
Age:38 years Occupation: Business
l) Mr. Prateek Anil Mittal
Age: 38 years Occupation: Business
m) Mr. Ajay Shankarlal Mittal
Age:58 years Occupation: Business
n) Mr. Anoop family trust
Through its trustee,
Mr. Kishore Vishwanath Mittal,
Age: Adult, Occupation:
o) Mr. Ashok Vishwanath Mittal
Age:63 years. Occupation: Business

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p) Mr. Sunil P. Mittal Family Trust
Through its trustee,
Mr. Ayush Sunil Mittal
q) Kanta Trust
Through its Trustee,
Mr. Rahul Rajendra Mittal

3. EMBLEM REALTY LLP
A Limited Liability Partnership Firm
duly incorporated under provisions of
the Limited Liability Partnership Act.
2008 and Having its Registered OCce
at: Sr. No. 36/1/1, OCce No. 802, 8th
Floor, Solitaire World, Chordia G.
Mumbai-Bangalore Highway, Baner
Gaon, Pune 411045, Maharashtra
[LLPIN# ACB 4620
Through its Designated Partners:-
a) Mr. Atul Chordia
Age: Adult, Occupation: Business
b) Mr. Ashok Dhanraj Chordia
Age: Adult, Occupation: Business
c) Mr. Pramod Bhagchand Ranka
Age: Adult, Occupation: Business ....Respondents/
d) Mr. Ankit Ujwalkumar Pagariya Orig.Defendants
Age: Adult Occupation: Business
___________________
Mr. Sitesh Sharma a/w Mr. Anurag Mishra, Mr. Vijay Upadhyay and
Ms.Asha Kanzariya for the Appellants/Applicants

Mr. Akshay Doctor a/w Mr. Parag Sawant, Ms. C. Gala, Mr. Bhumanyu
Singh Champavat i/b P.S. Chambers for the Respondent No.1(d)

Mr. Rubin Vakil a/w Ms. Sonam Mhatre, Ms. Soloni Sulakhe, Ms. Declan
Fernandez and Ms. Krushika Udeshi i/b Dhaval Vussonji & Associates for
the Respondent No.2
Mr. Mayur Khandeparkar i/b Mr. Bishwajeet Mukherjee for the
Respondent No.3 (Emblem Realty LLP)
___________________

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CORAM : SHARMILA U. DESHMUKH, J.
DATE :JUNE 17, 2026

JUDGMENT:

1. Admit. With consent, the Appeal is taken up for hearing

forthwith.

2. The Appeal is Aled by the original Plainti/s, being aggrieved

by the order dated 3rd February 2026 passed below Exhibit-5 in

Special Civil Suit No.1195 of 2024 by the 8 th Joint Civil Judge,

Senior Division, Pune, rejecting the application seeking temporary

injunction.

3. The suit came to be Aled seeking inter alia speciAc

performance in respect of the suit properties, which were

described in the plaint as undivided piece and parcel of land

admeasuring 40 R and undivided piece and parcel of land

admeasuring 1 H 20 R out of the larger land being Survey Nos. 236

and 238, as Suit Property No. 1 and Suit Property No. 2

respectively. The case of the Plainti/ was that Plainti/ No. 1 was

closely associated with and looked after the needs and means of

late Merwan Feroz Cama, who was impleaded through his legal

heirs, and that late Merwan Feroz Cama, as per his last Will and

Testament dated 8th October 2020, along with a declaration dated
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9th January 2021, has bequeathed and assigned 50% of his estate

to Plainti/ No. 1 and the balance 50% to his wife, i.e., Laxmi

Merwan Cama. It was pleaded that there were ongoing civil

proceedings between late Merwan Cama and Defendant No. 2, i.e.,

Ganesh Construction Company, concerning the larger land. By

separate agreements entered into between the legal heirs of

deceased Merwan Cama and Defendant No. 2 as well as with

Defendant No. 1(d), with the active connivance and collusion of

Defendant No. 3, substantial consideration was paid resulting in

the civil suit being illegally and fraudulently withdrawn by the

Defendant No. 1(d).

4. It was pleaded that the larger land was initially owned by

late Mancherji Firozshah Cama, who was the grandfather of late

Merwan Feroz Cama, and Bachchubai Ardeshir Khusroji Wadia, each

holding 50% share in the larger land. A Gift Deed dated 12 th

September 1947 was executed by late Mancherji Firozshah Cama in

favour of his son, i.e. late Feroz Mancherji Cama, and daughter in

law , late Mackly Feroz Cama, who became entitled to 25% each in

the larger land. A Gift Deed dated 7th July 1953 was also executed

by Bachchubai in favour of his son Khusro Ardeshir Wadia, who

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became the owner of the balance 50% undivided share in the

larger land. Late Mackly Feroz Cama expired on 3rd July 1950,

leaving behind her husband, Feroz Mancherji Cama and her son,

Merwan Feroz Cama, as her surviving legal heirs, who became

entitled to 12.5% share each out of the undivided 25% share held

by late Mackly Feroz Cama in the larger land. Thereby, Feroz Cama

was entitled to 37.5% undivided share, and 12.5% undivided share

was devolved upon Merwan Feroz Cama and the remaining balance

50% undivided share stood in the name of Khusro Ardeshir Wadia.

The plaint further sets out that the said Feroz Cama and Khusro

Wadia entered into certain property agreements with Defendant

No. 2 in respect of an area admeasuring 9 H 53.06 R out of total

area admeasuring 10 H 38 R of land bearing Survey No. 236 and an

area admeasuring 9 H 34.85 R out of total area admeasuring 9 H 35

R of land bearing Survey No. 238. No Deeds/Agreements were ever

executed by Merwan Cama in respect of his 12.5% undivided right,

title, and interest in the larger land.

5. It is pleaded that Late Feroz Cama had executed a release

deed dated 26th August 2008, releasing his 37.5% undivided share

in the larger land in favour of Merwan Feroz Cama, which was duly

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registered, and the name of late Merwan Cama came to be

mutated in the relevant revenue records vide Mutation Entry No.

26757 dated 14th August 2010.

6. The plaint further sets out that there were multiple litigation

Aled in respect of the larger land by and against Merwan Feroz

Cama, and one of the proceedings was Regular Civil Suit bearing

RCS No. 5915 of 2012, in which an interim order was passed against

Defendant No. 2 from creating third-party rights, which stood

conArmed.

7. By the Interim Application, reliefs were sought against the

Defendant Nos. 2 and 3 from creating third-party rights in the suit

property and from changing the nature of the suit property and

undertaking any development and/or construction on the suit

property.

8. The Defendants opposed the grant of interim relief denying

the rights of Merwan Cama in the suit property as alleged. It was

contended that by the Indenture dated 12 th September 1947,

Mancherji Cama had gifted his half portion (50%) to Feroz

Mancherji Cama and Mackly Feroz Cama as joint tenants, and after

the demise of Mackly Cama on 3 rd July 1950, Feroz Mancherji Cama

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became the sole owner of the 50% undivided share and was alone

entitled to deal with the same in his own right, to the exclusion of

all others. By the Indenture dated 25 th May 1989, Feroz Cama and

Khusro Ardeshir Wadia sold the land admeasuring 23 acres and 23

gunthas out of Survey No. 236 and land admeasuring 23 acres and

4 gunthas out of Survey No. 238 to the partners of Defendant No. 2

Company by a registered Deed, and the e/ect was given in the

revenue records vide Mutation Entry No. 15829 dated 18 th October

1995. Subsequently, a Correction Deed was executed on 31 st

January 2012 by the parties, and Deeds of ConArmation were

executed by Khusro Ardeshir Wadia and Feroz Mancherji Cama

Ganesh Construction Company conArming the equal undivided

share of Feroz Mancherji Cama in the larger land. Subsequently,

Defendant No. 2 sold the entire larger land to Defendant No. 3 vide

Deed of Conveyance dated 19th December 2023. The agreements

of the Plainti/s are all contingent contracts, the performance of

which was dependent upon the suit being decreed in favour of

Merwan Cama and with the withdrawal of the suit, the contingency

has become impossible, and hence, both the agreements have

become void and unenforceable.

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9. The Defendant No. 1(d) claimed that the Defendant No. 1(d)

was appointed as the Executor of the last Will and Testament

dated 27th February 2023 of deceased Merwan Cama. The

Defendant No. 1(d), in his capacity as Executor, has no privity of

contract with the Plainti/s under the alleged suit agreements.

10. By the impugned order dated 3rd February, 2026, the

application came to be rejected broadly for the following reasons:

(a) Absence of proper description of the suit property and grant of

injunction would amount to blanket injunction against the entire

property.

(b) No relief of partition and separate possession was claimed

under Section 22 of SpeciAc Relief Act, though the agreements are

in respect of undivided share in the larger land.

Defendant No. 2.

(d) Merwan Cama did not possess any right in the suit property at

the time of execution of the agreements with the Plainti/s.

(e) There is suppression in the plaint about the development

agreement of 21st July, 1981, Indenture dated 25th May, 1989,

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possession receipt dated 28th March, 1987 and Mutation Entry No.

15829 which records the name of Defendant No. 2.

(f) RCS No. 4915 of 2012 being withdrawn, the contingency of

success of the suit has been impossible rendering the contingent

agreements void.

(g) The issue of fraudulent withdrawal of RCS No. 4915 of 2012

cannot be decided while adjudicating the interim application.

11. Accordingly, the Trial Court held that no prima facie case had

been made out, and that the balance of convenience was not in

favour of the Plainti/s, and rejected the application.

12. Mr. Sharma, Learned counsel appearing for the Appellants

would submit that Section 22 of the SpeciAc Relief Act permits

amendment of the suit and the absence of relief of partition and

separate possession is not fatal to the application for interim

injunction. He would further point out that this Court, in Review

Petition Aled by the partners of Defendant No. 2 against Merwan

Cama, wherein an injunction was passed against the Defendant No.

2, has held that late Merwan Cama had an undivided share in the

property, the extent whereof would be contingent upon the

adjudication of the earlier suit, and, in the event late Merwan Cama

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failed in the suit, the question would arise whether he was at least

entitled to a 12.5% share in the suit property. He would further

point out that this Court has held that, in the absence of any

deAniteness in respect of the share of the Plainti/ i.e. Merwan

Cama, the same can only be said to be an undivided share. He

submits that the earlier order, therefore, accepted that late

Merwan Cama had a share in the property.

13. He has taken this Court through the Andings of the Trial

Court and would contend that despite speciAc pleading of fraud in

unconditional withdrawal of RCS No. 4915 of 2012, the Trial Court

has declined to go into the said issue. He would point out that the

settlement agreements with Defendant No. 1(d) resulting in

withdrawal of the suit was for consideration of Rs. 20 crores and

the recitals therein recognised that under the release deed, Feroz

Cama had released all his rights in favour of late Merwan Cama.

14. He would further point out that the Defendant No. 1(d) had

signed the settlement agreement as Administrator and not as an

Executor, and the suit could not be withdrawn before obtaining the

Letters of Administration. He would further point out that the Will

of Merwan Cama was registered on 27th February 2023 at

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11:14 a.m., and two minutes prior thereto, the Power of Attorney

executed by Merwan Cama in favour of Defendant No. 1(d) was

registered. He would point out that the Power of Attorney

speciAcally states that the Defendant No. 1(d) had no right to sell

the properties without the consent of Merwan Cama. He would

submit that the legal heirs of Merwan Cama did not acknowledge

the existence of the Will, which is the reason for separate

agreements with Defendant Nos. 1(a) to 1(c), who are the legal

heirs, and Defendant No. 1(d). He points out that under the Will of

Merwan Cama, Defendant No. 1(d) has been appointed as the

Administrator of the property/estate and also points out that the

Will gives Defendant No. 1(d) 5% of the estate, not exceeding Rs.

10 crores, and by way of the settlement, Defendant No. 1(d) has

received almost Rs. 20 crores from Defendant No. 2. He would

point out the application Aled by the legal heirs on 11 th December

2023 in RCS No. 4915 of 2012 seeking permission to withdraw the

suit on the ground that the legal heirs had entered into a

settlement outside the Court.

15. He submits that the Agreement for Sale executed with the

Plainti/s was based on the outcome of RCS No. 4915 of 2012,

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which has been withdrawn fraudulently. He submits that the

Interim Application in the present proceedings has been rejected

on the ground that Merwan Cama had no right, whereas the

settlement agreements contains an implicit admission of the rights

of Merwan Cama in the subject property. He submits that the

grandfather of Merwan Cama had acquired the property in the year

1930 along with one Bachchubai as tenants-in-common, and the

property which is acquired as tenants-in-common cannot be

converted into joint tenancy. He submits that the entire genesis of

the Defendants' case is based on joint tenancy, which is

unsustainable. In support, he relies upon the decision of Babu Lal

vs. M/s. Hazari Lal Kishori Lal & Ors.1

16. Mr. Khandeparkar, learned counsel appearing for the

Respondent No. 3, who is a subsequent transferee, submits that

the provisions of Section 22(2) of the SpeciAc Relief Act are

mandatory, as it provides that if relief is not claimed, the same

cannot be granted. He submits that the position which existed at

the time of adjudicating the Interim Application was that no

amendment had been sought and as the Agreements for Sale

executed by the Plainti/s were in respect of an undivided share

1 (1982) 1 SCC 525
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without seeking the relief of partition, there could be no

injunction.

17. He submits that in RCS No. 4915 of 2012, the deceased

Merwan Cama had sought a declaration of ownership of the

property not on the basis of his parents being tenants-in-common

but on the ground of purported Release Deed executed by Feroz

Cama in favour of Merwan Cama. He submits that the suit also

contained an averment that the Agreement dated 25 th May 1989 is

void and not binding on the Plainti/s, which constitutes an

admission of the existence of the Agreement of 1989. He submits

that, without obtaining a declaration as regards ownership of the

property, Merwan Cama could not have executed the agreements

and, without the suit being decreed, the agreements constituted

contingent contracts and upon withdrawal of the suit, the

contracts have become void.

18. He submits that the argument of fraud cannot be the

primary argument. He would further point out that the Trial Court

has rightly noted that, for the purpose of deciding the Interim

Application, it was not necessary for the Court to go into the issue

of the purported fraud in withdrawal of RCS No. 4915 of 2012, as

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proceedings for restoration had already been Aled and were

pending. He would further point out that the Trial Court has noted

the fact of suppression of documents, which were within the

knowledge of the Plainti/s, and therefore the Plainti/s, even

otherwise, were not entitled to any interim relief.

19. He submits that there was no privity of contract between the

Plainti/s and the Respondent No. 3, who had purchased the

property from Respondent No. 2. He submits that the purported

Agreement for Sale executed with the Plainti/ No. 1 was for a sum

of Rs. 1.60 lakhs in the year 2012 and with the Plainti/ No. 2 for Rs.

30 lakhs, whereas the entire property was purchased by

Respondent No. 3 for a sum of about Rs. 174 crores in the year

2023, which casts a doubt on the execution of the agreements

themselves.

20. He would further point out the Andings of the trial court that

there is no proper description of the suit properties without which

the injunction would amount to blanket injunction in respect of the

entire property. He would further point out the provisions of Order

VII Rule 3 of CPC mandating proper description of the property. He

would further point out that the documents in respect of the

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property were in favour of Defendant No. 2, who has alienated its

rights in favour of the Defendant No. 3.

21. Mr. Rubin Vakil, learned counsel appearing for the Defendant

No. 2, would adopt the submissions of Mr. Khandeparkar and would

further contend that the Plainti/s claim through Merwan Cama,

and the e/ect of withdrawal of RCS No. 4915 of 2012 is that the

Defendant No. 2's title through the document of 1989 stands

conArmed. He submits that the fulcrum of Merwan Cama's case

was the execution of the release deed, which was challenged by

Feroz Cama as being fraudulent and that the mutation entry was

overturned in the year 2011. He submits that the release deed was

also executed on the basis of Power of Attorney, which was signed

by Merwan Cama, both for the Releaser and the Releasee, which is,

prima facie, a fabricated document.

22. He submits that the claim of the Plainti/s is that the

property stood in the names of Feroz Cama and Mackly Cama as

tenants-in-common, whereas the Gift Deed would show that the

property was to be held by Feroz Cama and Mackly Cama as joint

tenants and not as tenants-in-common. He submits that the fact

that Merwan Cama claimed through the release deed amounts to

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an admission of the ownership of Feroz Cama, and unless Merwan

Cama acquired title to the property, he could not convey any better

title.

23. Mr. Akshay Doctor, learned counsel appearing for Defendant

No. 1(d), submits that without seeking any relief against Defendant

No. 1(d) in the suit, allegations have been made against the

Defendant No. 1(d). He submits that the collusion and fraud are not

pleaded in the plaint. He submits that the agreements were

executed by the Defendant No. 1(d) as Administrator of the estate

and not as an Administrator under the Will. He further submits

that, under Section 213 read with Section 57 of the Indian

Succession Act, as the deceased was a Parsi, there was no

requirement of obtaining probate, and the property was situated

outside Mumbai.

24. In rejoinder, Mr. Sharma would submit that the Trial Court has

arrived at an incorrect Anding of suppression of facts by pointing

out the pleadings in the plaint. He submits that, in the earlier

round of litigation, the order passed in the Review Petition

speciAcally holds that the deceased Merwan Cama would be

entitled to either 50% or 12.5% share upon adjudication of the suit,

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and all the orders were annexed to the plaint and therefore, there

is no suppression. He would submit that after acknowledging

Merwan Cama’s right while withdrawing RCS No. 4915 of 2012, it is

no longer open for the Defendants to contend otherwise. He

submits that the Sale Deed of 1989 was executed on the basis of a

Power of Attorney and the ConArmation Deed came to be

executed in the year 2011 after the Aling of Merwan Cama's suit in

the year 2010, which was subsequently renumbered in the year

2012. He submits that there was previously an injunction in favour

of Merwan Cama in respect of the entire land in RCS No. 4915 of

2012 and that the Defendant Nos. 2 and 3 have orchestrated the

entire fraud in January 2023. He points out the certiAcate issued

under Section 281 of the Income Tax Act to Defendant No. 2 on a

request made in October 2023 for sale of the subject land, whereas

the withdrawal of the suit took place subsequently. He submits

that the Defendants concealed the agreements executed with the

legal heirs and Defendant No. 1(d).

25. He submits that there is a requirement of obtaining

Probate/Letters of Administration, as the Will included properties

in Mumbai, and therefore Section 57 of the Indian Succession Act

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has no application. He submits that, under the agreements entered

into by Merwan Cama with the Plainti/s, the vendor had

covenanted to place the Plainti/s in actual and exclusive

possession of the said subject area, which obligation is now

required to be performed by the Defendants.

26. Rival contentions now fall for determination.

27. The purpose of grant of a temporary injunction in respect of

suits concerning immovable property is to preserve the status quo

of the subject property till the Anal decision. The correct

description of the property is therefore an essential ingredient and

Ands statutory recognition in Order VII Rule 3 of the Code of Civil

Procedure which mandates description of property suCcient to

identify it. Coming to present case, the plaint describes the larger

land comprising the total area of Survey Nos. 236 and 238 and

describes the suit properties as Suit Property No. 1 and Suit

Property No. 2. Suit Property No. 1 is described as an undivided

piece and parcel of land admeasuring 40 R out of the larger land,

being the subject matter of the Agreement for Sale dated 22 nd May

2012, and Suit Property No. 2 is described as an undivided piece

and parcel of land admeasuring 1 H 20 R out of the larger land,

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being the subject matter of the Agreement for Sale dated 18 th

October 2013. The plaint does not describe whether the suit

properties are part of Survey No. 236 or Survey No.238 or portions

of Survey Nos. 236 and 238. The Agreement for Sale dated 22 nd

May 2012, executed in favour of Plainti/ No. 1, describes the

subject property as 40,000 square feet out of Survey Nos. 236 and

238. Similarly, the Agreement for Sale dated 18 th October 2013

describes the subject property as a piece and parcel of agricultural

land bearing Survey Nos. 236 and 238.

28. The Interim Application seeks an injunction from creating any

third-party rights in respect of the suit property or from carrying

out any development or construction activity on the suit property.

The provisions of Section 22 of the SpeciAc Relief Act permits the

Plainti/s to seek the relief of partition and separate possession in

an appropriate case and provides that no relief shall be granted by

the Court unless it has been speciAcally claimed. As the claim of

speciAc performance was qua undivided share of the subject

property, this was an appropriate case in which the relief for

partition and separate possession ought to have been claimed,

without which no relief of injunction could be granted. The

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purchase of an undivided share does not give title to any deAnite

share and without claiming relief of partition, no relief of speciAc

performance could be granted. Though the plaint could be

amended to seek the relief of partition, the grant of interim

injunction is dependent on the position that existed at the relevant

time. The Plainti/ is required to make out a prima facie case of

entitlement to the relief of speciAc performance of the suit

properties, for purpose of injunction and without seeking relief of

partition, no such case was made out. To grant an injunction in

respect of an undivided share, would e/ectively put a restraint on

the entire land and no such blanket injunction could be granted.

29. The Plainti/s claim to the suit properties is founded on the

agreements for sale executed by deceased Merwan Cama in favour

of the Plainti/s. The agreements for sale were contingent

contracts dependent on the success of RCS No. 4915 of 2012 and

this Court has not heard Mr. Sharma to contend to the contrary.

Being contingent contracts, the withdrawal of RCS No. 4915 of

2012 deals a crushing blow to the Plainti/s’ claim to the suit

property. Whether there was fraudulent withdrawal of the suit is

subject matter of an independent restoration application Aled by

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the Plainti/s for restoring RCS No. 4915 of 2012. In the present

proceedings, pending the adjudication of the issues in the

restoration application, the Trial Court could not have ventured

into the aspect of fraudulent withdrawal of the suit and has rightly

declined to do so.

30. The submissions of Mr. Sharma in assailing the impugned

order concentrated on the aspect of fraud in withdrawal of RCS No.

4915 of 2012, which submissions are relevant for purpose of

restoration application. The impact of withdrawal of the suit on the

present proceedings is that the agreements for sale have been

rendered void and incapable of being enforced. No rights could be

claimed by Plainti/s on the basis of void agreements.

31. The Plainti/s’ right was inchoate right, dependent on

Merwan Cama’s right being adjudicated in the suit. The prayers

sought by the deceased Merwan Cama in RCS No. 4915 of 2012

was declaration of ownership in respect of the larger land which

implied the absence of ownership right of deceased Merwan Cama.

The suit was premised on the release deed purported to have been

executed by Feroz Cama in favour of Merwan Cama on 20 th August,

2008. The deceased Merwan Cama himself asserting its ownership

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rights on the basis of release deed, the Plainti/s cannot be heard

to contend that the subject property devolved upon Merwan Cama

by inheritance upon death of his mother Mackly Cama. The

contention also cannot be accepted for the reason that the Gift

Deed executed by Mancherji Cama in favour of Feroz Cama and

Mackly Cama gifts the property as joint tenants. Upon death of

Mackly Cama, it is Feroz Cama who becomes the owner of the

subject property and it is Feroz Cama who had alienated the

property in favour of Defendant No. 2 in the year 1989. The

fulcrum of the case of Merwan Cama’s ownership was the Release

Deed of the year 2008, which was executed on basis of purported

Power of Attorney executed by Feroz Cama. The Release Deed was

termed by Feroz Cama fraudulent and the mutation entry in name

of Merwan Cama came to be deleted.

32. One of the many hurdles that obstructs the grant of

injunction is the subsisting agreement of the year 1989 in favour of

Defendant No. 2 and without the document being dislodged, no

right could be claimed by the deceased Merwan Cama and neither

by the Plainti/s. The indenture of the year 1989, the mutation

entry, the development agreements are documents which prima

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facie reOects the ownership of Defendant No. 2 of the subject

properties and has been rightly noted by the Trial Court. In the

teeth of the documents prima facie evidencing the ownership

rights of Defendant No. 2, on the basis of agreements for sale,

which even otherwise, does not transfer any ownership rights to

the Plainti/s and being contingent contracts rendered void upon

withdrawal of RCS No. 4915 of 2012, the Defendants could not

have been restrained from dealing with the subject property.

33. The Trial Court has considered the documents placed on

record to arrive at a Anding that, at the time of execution of the

Agreements dated 22nd May 2012 and 18th October 2013, Merwan

Cama was not having title in respect of the suit property. The

withdrawal of R.C.S. No. 4915 of 2012 puts an end to any claim for

ownership of the subject property by Merwan Cama and resultantly

of the Plainti/s and unless the claim is revived, no injunction could

have been granted against the Defendants. The subsequent

framing of the issue of fraudulent withdrawal of RCS No. 4915 of

2012 does not assist the case of the Plainti/s for grant of

injunction.

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34. The settlement agreements on which much reliance has been

placed by Mr. Sharma records that, with an intention to put a

quietus to the litigation, the parties have agreed to settle the

dispute. The recitals to the Settlement Agreement also record that

based on the purported Release Deed dated 26 th August 2008,

Merwan Cama had Aled several proceedings, which also included

the R.C.S. 4915 of 2012. Prima facie perusal of the clauses of the

Settlement Agreement would indicate that Defendant No. 2 has

not accepted that under the Release Deed, Merwan Cama had

acquired any right, as it refers to the Release Deed as a `purported

Release Deed’ and that only for the purpose of putting a quietus to

the litigation, the dispute is settled.

35. The contention of Mr. Sharma to assail the withdrawal of the

suit by Defendant No. 1(d) by contending that Defendant No. 1(d)

was appointed as an Administrator and not as an Executor and that

the Will was a suspicious document are all arguments best left to

be adjudicated in the application for restoring RCS No. 4915 of

2012.

36. Insofar as the order passed in the Review Petition is

concerned, the proceedings arose out of RCS No. 4915 of 2012 and

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any prima facie observations as regards the rights of Merwan Cama

by way of an interim order would not survive the Anal withdrawal

of the proceedings.

37. As the Plainti/s have failed to make out a prima facie case of

being entitled to speciAc performance of the Agreements, which

became void by reason of withdrawal of RCS No. 4915 of 2012, no

injunction could be granted. As the Defendants claim under a

document of 1989 and the Plainti/s claim under subsequent

agreements, the balance of convenience is in favour of the

Defendants.

38. The Trial Court has rightly considered that no proper

description of the properties was provided and, hence, a blanket

injunction could not be granted. As the entire suit property

remains undivided, and in the absence of relief of partition and

separate possession being sought, the application at Exhibit-5

could not be granted. Based on the documents, the Trial Court has

come to a prima facie Anding that Merwan Cama did not have title

in respect of the suit property at the time of execution of the

Agreements dated 22nd May 2012 and 18th October 2013. At the

time of execution of the Agreements, the suit seeking a declaration

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of ownership was pending and, without Merwan Cama succeeding

in the said suit, he could not transfer any better title to the

Plainti/s. The Trial Court has rightly noted that the Plainti/s have

failed to make out a prima facie case and that balance of

convenience is not in favour of Plainti/s.

39. It is well settled that the Appellate Court would not interfere

with the exercise of discretion and substitute its own view for that

of the Trial Court unless the discretion exercise by the Trial Court is

shown to be arbitrary and perverse. In light of the above

discussion, the Trial Court has exercised its discretion in judicious

manner warranting no interference in appeal.

40. The decision in Babulal v. Hazari Lal Kishori Lal and Others

(supra) interprets Section 22 as a rule of pleading that in order to

avoid multiplicity of proceedings, the Plainti/ may claim a decree

for possession in a suit for speciAc performance even though the

right to possession accrues only when the suit for speciAc

performance is decreed. Pertinently, the Hon’ble Apex Court has

clariAed that the expression “in an appropriate case” in Section

22(1) indicates that it is not always incumbent upon the Plainti/ to

claim possession, partition, or separate possession in a suit for

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speciAc performance of a contract for the transfer of immovable

property, and that has to done where the circumstance demanding

the relief for speciAc performance of contract of sale embraces

within its ambit not only execution of the Sale Deed but also

possession of the property conveyed under the Sale Deed.

Applying the said principle to the facts of the present case, as the

Plainti/s claim to have purchased an undivided share in the subject

property, the relief of partition was mandated.

41. In light of the above discussion, there is no perversity which

is demonstrated in the Andings of the Trial Court. Resultantly, the

Appeal fails and stands dismissed.

42. Needless to clarify that the observations made herein are

only prima facie observations and the Trial Court to decide the suit

on its own merits and in accordance with law, uninOuenced by the

observations in the present order.

43. In light of the above, nothing survives for consideration in

the Interim Application. The same stands disposed of accordingly.

SHARMILA U. DESHMUKH, J.

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