ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION APPEAL APPEAL APPEAL FROM ORDER NO. 203 OF FROM ORDER NO. 203 OF FROM ORDER NO. 203 OF 2008 2008 2008 WITH WITH WITH CIVIL CIVIL CIVIL APPLICATION NO. 247 OF 2008 APPLICATION NO. 247 OF 2008 APPLICATION NO. 247 OF 2008 Naresh Nemichand Jain ...Appellant. Vs. M/s.Kajal Enterprises & Ors. ...Respondents. Mr.A.K.Abhyankar, Sr.Advocate i/by Mr.R.D.Suryawanshi for the Appellant. Mr.P.K.Dhakephalkar, Sr.Advocate i/by Mr.Kunal Cheema for Respondent No.1. Mr.Yadunath Choudhary for Respondent Nos. 2 to 10. CORAM CORAM CORAM : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. DATED DATED DATED : 10th April, 2008 : 10th April, 2008 : 10th April, 2008 P.C. P.C. P.C. . This is an Appeal against the order whereby learned Civil Judge, Senior Division, Thane by order dated 14th January, 2008 rejected an application Exh. 5 by holding that the Plaintiff- Appellant herein failed to make out a prima-facie case; no balance of convenience lies; failed to show irreparable loss if the injunction is refused. 2. As per the averments of the Appellant- Plaintiff ( 2 ) admittedly, original defendant Nos. 2 to 9 are the owners of the land bearing Survey No. 109 Hissa No.9 situated and lying and being at village Ghodbundar, Taluka and District Thane. The plaintiff has raised his case upon the agreement of development rights dated 28th September, 2006 and alleged irrevocable General Power of Attorney executed by Defendant Nos. 2 to 9 in favour of Defendant No.1. 3. The Plaintiffs main document is nothing but the receipt which is reproduced in para 15 as follows:- Date:- 05.10.2006. . Received with thanks from Mr.Naresh N. Jain a sum of Rs.5,00,000/- by Ch. No.632630 dated 05.10.2006 drawn on Karnataka Bank, Bhayander East towards the token amount against land Survey No.109, Hissa No.9 of Village Ghodhandev, Taluka, Dist. Thane and hereby allowed you to give paper notice for title search @ Rate Rs.1651/- per Sq.yards. I hereby confirm. I say received. For Kajal Enterprises, Sd/- Proprietor. . The Plaintiff is Naresh Jain. M/s. Kajal Enterprises is Defendant No.1. It is only token amount. There is no such agreement with Defendant ( 3 ) No.2 to Defendant No.9 or with Defendant No.1 or even with Plaintiff. 4. The facet in such type of matter for specific performance is an agreement/ contract of sale of immovable property. Admittedly, there is an agreement of development executed in favour of Defendant No.1 who based upon the said agreement alongwith the so called Power of Attorney cannot sale the land property itself, without developing the land or constructing the flats. There is no such entitlement to sale the land property independently and or separately. The heavy burden lies upon the plaintiff to prove his independent and separate right to sale the land based upon such receipt without or any agreement as referred even in the agreement of development and Power of Attorney. There is no question of accepting the submission of the Senior Counsel for the Appellant at this stage of the proceedings and rightly rejected by the trial court. It is a matter of detail trial. Even otherwise, prima-facie, there is no justification to accept the case of the Plaintiff based upon the receipt so produced above and or the development agreement or the Power of Attorney, to continue the ad-interim relief as claimed in the present matter. ( 4 ) There is no prima facie right created in favour of the Plaintiff based upon these documents. 5. Lastly, defendant No.2 to 9 are the owners of the land. There is no case that there is any agreement with the original owner in writing and or oral. 6. In view of all this, the Plaintiff is not entitled for any interim relief specially against the original owner i.e. Respondent Nos. 2 to 9. There is no case made out by the Plaintiff for any interim relief as prayed. 7. The learned Senior counsel appearing for the Appellant submit that interim order as granted by the Trial Court on 14/01/2008 be continued considering the reasoning given. At this stage, it is sufficient that the Respondents, shall not to create any third party right in the property for six weeks, if not already created. 8. Appeal from Order is dismissed, accordingly. (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.)