IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR APPEAL AGAINST ORDER NO. 44/2009 Dayaram Paiku Agase Vs. Shamim s/o Jabbar Qureshi and another Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's Orders Shri Nitin Vyawahare, Adv for appellant. Shri Naqeeb A.Q. Patel, Adv for respondents . CORAM: R. K. DESHPANDE J. Dated: 4 th October, 2010. This appeal challenges order dated 6th January, 2010 passed below Exh. 5 in Special Civil Suit No. 38/09 by the learned Civil Judge, Senior Division, Bhandara. By this order the application Exh.5 filed by the respondent-plaintiff has been allowed and the defendant nos. 1 & 2, their agents, servants or any person on behalf of them are temporarily restrained from creating any third party interest or disturbing the possession of the plaintiff and the prospective purchaser over the suit land, till the decision of the suit. 2. The respondent no.1 is the original plaintiff who has filed Special Civil Suit no. 38/2009 for specific performance of contract dated 15.2.2005 by which the appellant original defendant no. 1 has agreed to sell the suit property to the plaintiff for a valuable consideration of Rs. 7,50,000/-. It is also based upon the fresh agreement said to have been executed by the appellant defendant no. 1 in favour of the plaintiff on 10.7.2006. 3. The case of the appellant defendant no.1 before the trial court is that by an agreement dated 27.9.2006, said to have been executed by the plaintiff, the agreement dated 15.2.2005 has been cancelled. After such cancellation, the appellant defendant no. 1 has executed registered sale deed dated 7.1.09 in favour of the respondent no. 2, who is defendant no. 2, and accordingly the defendant no. 2 is in possession of the suit property. According to the appellant defendant no.1, the plaintiff himself has cancelled the agreement dated 15.2.2005 and thereafter the defendant no. 1 has executed sale deed in favour of the defendant no. 2 on 7.1.09. The possession has been taken over and the mutation entry in the name of defendant no.2 has been made in 7/12 extract on 31/1/2009. The reliance is thus placed upon the agreement dated 7.1.2009 and the entry in 7/12 extract on 31.1.2009 to show that the defendant no.2 is in possession of the suit property. On the basis of this, it is urged that the trial court has committed an error in recording the finding that the plaintiff is in possession of the suit property. 4. The trial court has taken into consideration the agreement dated 15.2.2005, the recitals of which indicated that the plaintiff is put in possession of the suit property. Though the plaintiff has come up with a case of execution of the fresh agreement dated 10/7/2006, the same has been denied by the defendant no.1. The defendant no.1 has placed reliance upon the agreement of cancellation dated 27.9.2006 said to have been executed by the plaintiff. The plaintiff has, however, denied the said agreement. In view of this, the trial court has held that prima facie plaintiff is in possession of the suit property and the questions about execution of the agreement dated 10/7/2006 and 27/9/2006 are required to be decided. 5. The only contention raised by Shri Vyawhare, the learned counsel for the appellant, is based upon the agreement of cancellation said to have been executed by the plaintiff and the entry in the 7/12 extract extract made on 31.1.2009 and urged that the defendant no.2 is in possession of the suit property. The defendant no.2 has not preferred any appeal. The agreement dated 27.9.2006 nowhere makes reference to the original agreement dated 15.2.2005 or to the delivery of possession of the suit property by the plaintiff to the defendant. The entry in 7/12 extract has been made on 31.1.2009 in favour of the defendant no. 2 is was not before the court. In view of this, no fault can be found with the finding recorded by the trial court that prima facie the plaintiff has established his possession over the suit property and the grievance that the defendant no.2 is in possession of property cannot be entertained at the instance of appellant who is the defendant no.1. In view of above there is no substance in this appeal. The same is , therefore, dismissed with no order as to costs. JUDGE Hirekhan