1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD APPEAL FROM ORDER NO.63 OF 2009 Jagdish s/o Punnamchand Roda ... APPELLANT VERSUS Sow.Kiran w/o Mahaveer Roda and others ... RESPONDENTS ..... Shri B.R. Warma, Advocate for the appellant Shri Amol Gandhi, Advocate for R.No.1 & 2 Shri P.V. Mandlik, Senior Counsel instructed by Shri U.B. Bilolikar, Advocatefor R.No.3. ..... CORAM : S.P. DAVARE, J. DATED : 25th June, 2009. ORAL ORDER : 1. Perused. Heard learned respective counsel. 2. By the present Appeal from order, the appellant (original plaintiff) has challenged the order dated 17.6.2009, passed by learned Joint Civil Judge, Senior Division, Nanded below Exh.8 in Special Civil Suit No.83/2009, thereby rejecting the prayers made by the appellant / plaintiff in Exh.8. 2 3. It is the contention of the appellant/ plaintiff that the respondent Nos.1 and 2 had executed an agreement of sale in his favour on 28.2.2009 regarding the suit property i.e. Shop at C.T.S. No.16980, Municipal Shop No.5-2-76, situated at Sarafa Bazar, Nanded. However, in pursuance of the said agreement of sale, the respondent Nos.1 and 2 did not complete their part of agreement and did not execute the sale deed in favour of the plaintiff. 4. However, it was revealed that the respondent No.2 has executed an agreement of sale in favour of respondent No.3 on 17.1.2009 in respect of the same suit property. Thereafter, the respondent Nos.1 and 2 executed registered sale deed in favour of respondent No3. On 18.3.2009 for the amount of Rs.3,50,000/- and conveyed the said suit property to respondent No.3 as well as handed over possession thereof to him. 5. On the face of the said position, it is the contention of appellant/ plaintiff that there is no reference of agreement of sale dated 17.1.2009 in the sale deed dated 18.3.2009 although amount of Rs.50,000/- was paid by the respondent No.3 to respondent No.3 on the said agreement of sale dated 17.1.2009 and, therefore, it is the contention of the appellant/ plaintiff that the agreement of sale dated 17.1.2009 is a got up document which was prepared and fabricated subsequently to defeat the claim of the appellant/ plaintiff on the basis of agreement of sale dated 28.2.2009 3 6. On the face of the said position, learned Shri Mandlik, Senior Counsel made submission that the respondent No.3 has become owner of the suit property by way of registered sale deed dated 18.3.2009 and he is in possession of the suit property and he has already started construction on the said property and, therefore, the learned Joint Civil Judge, Senior Division, Nanded rightly rejected the application for temporary injunction on 17.6.2009 since the agreement of sale in favour of respondent No.3 was earlier i.e. 17.1.2009 to the agreement of sale in favour of appellant/ plaintiff which is dated 28.2.2009. 7. Admittedly, the appellant/ plaintiff has filed the suit for specific performance of his agreement dated 28.2.2009 as well as challenged the sale deed executed by respondent Nos.1 and 2 in favour of respondent No.3 on 18.3.2009 and the said aspect of legality and validity of the sale deed would be decided in the said suit. 8. In the circumstances, Shri Mandlik, learned Senior Counsel on instructions, made statement on behalf of respondent No.3 that the respondent No.3 shall not claim equity on the construction carried out over the suit property in the event the appellant/ plaintiff succeeds in the said suit i.e. Suit No.83/2009 and the said statement is accepted and taken on record. 9. Considering the said statement and its acceptance, there is no impediment in proceeding the construction on the suit property by respondent No.3 and in view of the said matter, nothing survives in the 4 present Appeal from Order and same stands disposed of at the admissions stage itself, keeping open the rival contentions of the parties to agitate before the trial Court. Respondent No.3 shall furnish the undertaking in terms of the aforesaid statement made by Shri Mandlik, learned Senior Counsel for respondent No.3 in the trial Court on the next date. (S.P. DAVARE, J.) fmp/ao63.09