1 wp7695.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 7695 of 2010 Mr. Ramakant Narayanrao Deshmkukh ... Petitioner v/s. Mr. Ananta Kondu Vide & ors. ... Respondents Mr. M.S. Karnik for the petitioner. Mr. V.N. Tayade for the respondents. CORAM:- B.R. GAVAI, J. DATED :- MARCH 11, 2011. P.C. By way of present petition, the petitioner challenges the order dated 12th July, 2010 passed by the learned District Judge, Kalyan thereby partly allowing the appeal filed by the respondent-plaintiff. 2. The plaintiff claims to be in possession of 9 guntas of land allegedly purchased by him vide agreement of sale dated 3rd June, 1985. He further claims that remaining 22.5 guntas of the land was purchased vide sale deed dated 18th February, 1988. The land was purchased by plaintiff from deceased Chandrabaghabai contending that after the demise of said 2 wp7695.10.sxw Chandrabaghabai, the defendants who are legal heirs were obstructing the possession of suit land, the suit came to be filed for injunction. 3. In the said suit an application for temporary injunction was granted in favour of the suit property. The said order was carried in appeal by respondents before it. The learned Appellate Court restricted the injunction only insofar as 9 guntas of land is concerned and the set aside the order of learned trial Court insofar as land admeasuring 22.5 guntas is concerned. However, the learned Appellate Court confirmed that part of the order of the trial Court which restrained the defendants from creating third party rights. Being aggrieved thereby, the present appeal. 4. Shir Karnik, learned Counsel appearing on behalf of the petitioner submits that when the learned trial Court by well reasoned order has granted an order of injunction in respect of entire area, there was no reason for the learned Appellate Court to restrict it only to 9 guntas of land is concerned. He further submits that there was an admission in written-statement regarding the possession of plaintiff and as such the learned Appellate Court ought not to have interfered with the order passed by the learned trial Court. 3 wp7695.10.sxw 5. Shri Tayade, the learned Counsel appearing on behalf of respondents submits that the learned Appellate Court has rightly modified the order and as such no interference is warranted. 6. The learned Appellate Court has found that insofar as land ad- measuring 22.5 guntas is concerned, the document on which the plaintiff relied was dated 18th February, 1988. It was found that though according to the plaintiff sale deed was executed, on the basis of sale deed no steps for taking permission of the competent authority were taken for a long period of 23 years. It was further found that even in the 7/12 extract the entries fortified the possession of the defendants. Insofar as area of 9 guntas is concerned regarding which the plaintiff's claim is based on the agreement of sale dated 3rd June, 1985 is concerned, it has been found by the Appellate Court that insofar as that land is concerned, an application was made to the Sub-Divisional Office on 5th July, 1985 for grant of permission. It can thus clearly be seen that what has weighed with learned Appellate Court is that insofar as 9 guntas of land is concerned, the proceedings were initiated for permission to transfer the said land whereas insofar as the land admeasuring 22.5 guntas is concerned, no such proceedings were initiated before the competent authority. This fact coupled with the fact that 7/12 extract 4 wp7695.10.sxw showed the possession of defendant, has persuaded the learned Appellate Court to modify the order of the learned trial Court. However, while doing this the learned Appellate Court has amply protected the interest of the plaintiff by directing the defendants not to create any third party interest during the pendency of the suit. 7. In that view of the matter, it cannot be said that findings recorded by the learned Appellate Court are either perverse so as to warrant interference under extraordinary jurisdiction under Article 227 of the Constitution of India. Rejected. 8. It is made clear that neither the observations of the trial Court or Appellate Court or this Court would be taken into consideration by the learned trial Judge while deciding the suit and same would be decided on its own merits on the basis of evidence that will be led by the parties. (B.R. GAVAI, J)