FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO.24 OF 2010 WITH CIVIL APPLICATION NO.2171 OF 2010 ________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | ________________________________________________________ Heard Mr. Patil, learned Counsel for the appellant and Mr. Deshmukh, learned Counsel for the respondent No.3. 2 This appeal arises out of order dated 18th December, 2009 passed by the 3rd Joint C.J.S.D., Latur. The learned Counsel for the petitioner submitted that the original defendant No.2 has executed the sale deed in favour of the original defendant No.3 i.e. present appellant and possession was also handed over. He submits that it is an admitted position that the possession is with defendant No.3. The learned Counsel invited my attention to the grounds in the appeal and submitted that the defendant No.2 executed agreement to sell the suit land in favour of the present appellant and executed final registered sale deed on 4.2.2009 and the appellant is in possession of the property. There is no reason why the appellant should be prevented from creating third party right. He submitted that the property is at prime location and the appellant wants to develop the said property. The order passed by the Court below is without assigning any reason. Therefore, he submits that the appeal from order deserves to be allowed. In support of his contention, he placed reliance on the reported judgment in the case of Kachhi Properties v/s Ganpatrao Shankarrao Kadam and ors. (2010(5) Bom.C.R. 43) to contend that during pendency of the suit, unless the plaintiff demonstrates that the rule of lis pendens is inadequate to protect plaintiff’s interest, no interim order restraining the lawful owner is required to be passed. 3 The learned Counsel for the respondents submitted that taking into consideration the relationship between the defendants No.1 and 3 and in view of the agreement entered into between the defendant No.1 and plaintiff, the Court below has rightly exercised the discretion and passed appropriate order and no interference is called for. 4 After hearing the learned Counsel for the respective parties and perusing the grounds taken in the appeal, annexures thereto and the judgment cited by the learned Counsel for the appellant, I am of the opinion that the Court below has rightly exercised its discretionary jurisdiction and directed the appellant herein not to create third party right. It is not in dispute that the defendant No.1 who is general power of attorney holder of defendant No.2 has entered into agreement of sale with the plaintiff and also accepted Rs.10,00,000/- on the date on which agreement was made. The present appellant – original defendant No.3 is son of respondent No.3. Taking into consideration the facts as existing in the suit and brought before the Court, the Court has rightly passed order restraining the appellant herein from not creating third party rights. It cannot be easily brushed aside that defendant No.3 is son of defendant no.1, who entered into agreement to sell with the plaintiff. 5 In the light of above, the facts of this case stands on different footings from the ruling cited by the appellant. Therefore, the appeal from order is devoid of any merits and the same is dismissed. Civil Application, if any, stands disposed of. Needless to mention that the observations made in this order are only for the purpose of deciding the present appeal from order and the same shall not affect the merits of the pending suit. (S.S. SHINDE, J.) 01.10.2010. PLK/*