1 AO-271-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 271 OF 2010 WITH CIVIL APPLICATION NON. 647 OF 2011 1. Shri Harishchandra Ravaji Mogal ) Age: 60 years, Occ: Agriculture ) R/o: A/p : Saikheda, Tal: Niphad, ) Dist. Nashik. ) 2. Shri Balu Maruti Mogal ) Age: 28 yrs, Occ: Agriculture ) 3. Smt. Fulyabai Maruti Mogal ) Age: 57 Yrs, Occ: Agriculture. ) 4. Sunita D/o. Maruti Mogal ) Age: 39 yrs, Occ: Agriculture. ) 5. Suman D/o. Maruti Mogal ) No. 2 to 5 R/o: A/P Bhendali, ) Tal: Niphad, Dist. Nashik. ) 6. Gaya D/o. Marjuti Mogal ) Age: 31 yrs, Occ: Agriculture. ) R/o. A/p: Saikheda, Tal: Niphad ) Dist: Nashik. ).. Appellant/Orig.Defts.1-6) Versus 1. Shri Shivanand Pandharinath Khairnar ) Age: 57 years, Occ:Agri, & Business ) R/o: Saikheda, Tal: Niphad, ) Dist. Nashik. ).. Respondent/Orig.Plaintiff. 2. Maharashtra State Co-op. Land ) 2 AO-271-10.sxw Development Bank Ltd. Mumbai, ) Branch - Niphad, Through Branch ) Mgr. Niphad, Tal: Niphad, ) Dist. Nashik. ).. Respondents/ (Org. Defendants) Shri S.P. Shinde, Advocate for the appellant. Shri Uday P. Warunjikar,Advocate, for the respondent No.1. CORAM: J.H.BHATIA,J. DATE : 11th July, 2011. JUDGMENT: 1. The Appeal was admitted and the Civil Application for interim relief was pending. With consent, the Appeal and the Application are taken together for final hearing and disposal. 2. The learned Counsel for the appellant, who is original defendant No. 1 and who had allegedly entered into an agreement for sale for and on behalf of the defendants as Manager of the joint family, seeks to transpose the names of respondent Nos. 2 to 6 as appellants Nos. 2 to 6 in the Appeal. Mr. Warunjukar, the learned Counsel for the plaintiff/respondent objects to the oral prayer for transposing the respondent Nos. 2 to 6 as appellants on the ground of delay. I do not find any material in this objection. Leave granted. Amendment be effected immediately. 3 AO-271-10.sxw 3. The respondent No.1 before this Court is the original plaintiff and the appellants are the original defendants Nos. 1 to 6. The plaintiff/respondent No.1 filed special Civil Suit No.33 of 2009 in the Court of Civil Judge, Senior Division, Niphad, for specific performance of the contract for sale of the suit land bearing Gat No.550 situated at Village Bhendali, Taluka Niphad, District Nashik, to the extent of 1 H area. According to the plaintiff, by an agreement for sale dated 3.9.1999, the defendants had agreed to sell the suit land to him for consideration of Rs.2,50,000/-. The agreement was executed by the defendant No.1 on behalf of all the defendants. According to him, whole of the consideration amount was paid at the time of execution and possession was also given to him. He had made several improvements by spending huge amounts on the land. The said agreement for sale was duly registered in the year 2008. As the defendants were not willing to execute registered sale deed, he filed the suit for specific performance of contract. In the said suit, by application Exhibit 5, he sought temporary injunction restraining the defendants from causing any interference in his possession and also from creating any third party interest in the suit property. 4 AO-271-10.sxw 4. Defendant No.1 alone contested the application Exhibit 5 by his reply Exhibit 20. He denied that there was any agreement for sale, that he had received the consideration amount of Rs.2,50,000/-, that he had handed over possession and that the plaintiff was in possession of the land on the date of the suit or thereafter. According to him, "Kabja Pavati" (receipt) on which the plaintiff had relied was forged and fabricated documents. After hearing the parties, the trial Court allowed the application Exhibit 5 and restrained the defendants from creating third party interest in the suit land and also from causing any obstruction and interference in the peaceful possession of the plaintiff over the same. That order is challenged in the present Appeal. 5. I have gone through all the relevant documents and pleadings with the assistance of the learned Counsel for both the sides. The alleged agreement for sale is dated 3.9.1999. The said agreement shows that there was some charge of the defendant No.7 - Co-operative Bank over the property. As per the said agreement, either after clearance of the said charge from the Bank or at the time of execution of the sale deed, possession of the suit land would be given to the plaintiff. The agreement for sale nowhere shows that possession was given to the plaintiff at the time of agreement. Incidentally, the plaintiff relied upon the Kabja Pavti or possession receipt dated 3.8.1999 and as per that Kabja Pavti, the plaintiff 5 AO-271-10.sxw was put in possession of the suit land. The learned trial Court observed that the Kabja Pavati clearly shows that possession was given to the plaintiff and according to the plaintiff, he had spent substantial amount on the improvement and development of the land and, therefore, prima facie, the plaintiff is in possession of the property and if the temporary injunction is not granted, it would cause inconvenience to him. The learned trial Court further observed that the defendants had not produced any document to show that he had not given possession of the land to the plaintiff. This was a totally wrong and perverse approach of the learned trial Court Judge. The trial Court could look for a positive evidence and not for negative documentary evidence from the defendants. Burden of proof that the plaintiff was put in possession and that he was in possession of the land on the date of filing the suit was on the plaintiff. If this burden is not discharged, the defendants, being owners or holders of the property, are expected to be in possession. On perusal of the agreement for sale, it is clear that possession was not given on or before that date. The plaintiff has not produced any document to show that after that date the loan of the Bank was cleared and the Bank had given No objection certificate and on that basis, as per the terms of the agreement, he was put in possession of the land. Admittedly, the sale deed has not been executed and registered and therefore in the year 2009, the plaintiff filed suit for specific performance of contract for sale. In view of this, 6 AO-271-10.sxw the second eventuality of handing over possession of the land to the plaintiff at the time of execution of the sale deed was also ruled out. The Kabja Pavti, under which the plaintiff claims to have taken possession, is dated 3.8.1999. If the agreement for sale took place on 3.9.1999, it is difficult to understand how before that date the plaintiff could have been put in possession of the land. The defendant No.1 specifically stated in the reply that the alleged Kabja Pavti on the basis of which the plaintiff is claiming possession, was a forged and fabricated document. In view of the above circumstances, it is impossible to place any reliance on the said Kabja Pavti, which was allegedly executed one month before even the agreement for sale had taken place between the parties. On perusal of 7 x 12 extract of the suit land for the years 1997 to 2000, it appears that the defendants were continuously and consistently in possession of the suit land. There is no entry to show that the plaintiff was ever in possession of the suit land. 6. The learned counsel for the defendants/appellants pointed out that not only in the agreement for sale there was mention that possession would be given later on either after clearance of the land from the Bank or at the time of execution of sale deed, but this part of the alleged agreement was specifically mentioned in the public notice issued by the plaintiff on 6.1.2009. In that public notice issued by the plaintiff also he never claimed that he was put in possession 7 AO-271-10.sxw of the land. None of these documents was considered by the trial Court while granting temporary injunction. 7. Taking into consideration all the material on record, I find that the plaintiff has utterly failed to prove that he was put in possession and that he was in actual possession of the land on the date of filing the suit or thereafter. The trial Court committed serious error in coming to contrary view. Therefore, temporary injunction could not have been granted to restrain the defendants from interfering in possession of the plaintiff. As there is a suit for specific performance of contract, there was justification to restrain the defendants from creating any third party interest pending the suit. To that extent, the order can be maintained. 8. For the aforesaid reasons, the Appeal is partly allowed. The impugned order stands modified as follows :- The defendants shall not create any third party interest pending the suit. However, the prayer of the plaintiff for restraining the defendants from causing interference in his peaceful possession over the suit land stands rejected. 8 AO-271-10.sxw 9. As the Appeal itself is finally disposed of, C.A. does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)