1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Appeal against Order No. 95/2008 (Amarsingh Hirasingh Thakur VERSUS Tulshiram Kisan Ingle & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Nitin Lalwani, counsel for the appellant. Shri A.M. Gordey, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 19, 2009. By the instant appeal, the appellant challenges the order passed by the Civil Judge (Senior Division), Nagpur on 24.03.2008 allowing an application filed by the defendant no.2 restraining the plaintiff from disturbing the possession of the defendant no.2 over a part of the suit property. A suit was filed by the plaintiff for grant of a decree for specific performance of contract. According to the plaintiff, by an agreement dated 21.01.1997, the defendant no.1 had agreed to sell half the portion of the suit land admeasuring 1.32 HR to the plaintiff. It is pleaded by the plaintiff that on 17.07.1997, the wife of the defendant no.1 had 2 sold remaining half portion of the suit property to the defendant no.2 by a registered sale-deed dated 17.07.1997. It is also pleaded by the plaintiff that a suit for partition and separate possession of the share of the wife of the defendant no.1 was filed by the wife of defendant no.1 against the defendant no.1. The said suit was decreed. It is the case of the defendant no.2 that partition was effected by metes and bounds after a decree was passed in favour of Deokabai, the wife of defendant no.1, in the partition suit. This fact is, however, denied by the plaintiff. It is the case of the plaintiff that in view of the orders of status quo passed in the proceedings challenging the orders passed passed in the partition suit, the plaintiff remained in possession of the entire suit property. It is the case of the plaintiff that after the execution of the agreement dated 21.01.1997, by which the plaintiff agreed to purchase half of the suit 3 property, the defendant no.1 had put the plaintiff in possession of the entire property i.e. including the other half which was not agreed to be sold to the plaintiff by the agreement dated 21.01.1997. It appears from a reading of the replies filed by the defendant nos.1 and 2 to the application for grant of Temporary injunction that the defendant nos.1 and 2 claimed to be in possession of the property which was actually sold to the defendant no.2 by the registered sale-deed dated 17.07.1997. The trial Court allowed the application filed by the plaintiff for grant of temporary injunction restraining the defendant no.1 from alienating his share in the suit property which was agreed to be sold to the plaintiff by the agreement dated 21.01.1997. The defendant no.2 had filed an application for grant of temporary injunction restraining the plaintiff from disturbing the possession of the defendant no.2 on the 4 property purchased by the defendant no.2 by the registered sale-deed dated 17.07.1997. The trial Court found that the plaintiff had prima-facie case so far as the prayer made in the application for grant of temporary injunction restraining the defendant no.1 from alienating his share in the suit property, which was agreed to be sold to the plaintiff by an agreement dated 21.01.1997, was concerned. By the same order dated 24.03.2008, the trial Court, however, granted the temporary injunction against the plaintiff and in favour of the defendant no.2 restraining the plaintiff from disturbing the possession of the defendant no.2 over the other half of the suit property. The part of the order dated 24.03.2008, granting injunction in favour of defendant no.2 restraining the plaintiff from disturbing the possession of the defendant no.2 is challenged in the instant appeal. 5 I have heard the learned counsel for the parties and have perused the impugned order dated 24.03.2008 and some of the copies of the documents which formed a part of the record before the trial Court. On a perusal of the same, it is clear that the trial Court committed no error in granting a temporary injunction in favour of defendant no.2 restraining the plaintiff from disturbing the possession of the defendant no.2 over the suit property. The only documents on which the plaintiff relied for showing his possession over the property, of which the defendant no.2 had sought temporary injunction, were the agreements executed in the years 1997 & 2004. It is conspicuous to note that both these agreements are not sufficiently stamped though, according to the plaintiff, they conveyed the possession of the entire suit property to the plaintiff. On the other hand, the defendants produced a number of documents on 6 record in the form of entries in record of rights and the 7/12 extracts to show that the defendant no.2 was in possession of the suit property. The trial Court held that the documents produced by the defendant no.1 on record showed that the property, of which the defendant no.2 sought an injunction, was purchased by Deokabai and Deokabai was in possession of the suit property earlier and the defendant no.2 was in possession of the same after purchasing it. The trial Court prima-facie held that there was evidence on record to show that the property was partitioned by metes and bounds and the defendant no.2 had purchased the property by a registered sale-deed dated 17.07.1997. The Court held that it was necessary to protect the possession of the defendant no.2 by granting a temporary injunction restraining the plaintiff from disturbing the possession of the defendant no.2 over the suit property purchased by the defendant no.2 by a 7 registered sale-deed dated 17.07.1997. It cannot be said that the Civil Judge (Senior Division), Nagpur granted a temporary injunction in favour of defendant no..2 in the absence of any prima-facie case and balance of convenience in favour of defendant no.2. From the evidence produced by the parties before the trial Court, it is clear that the defendant no.2 had a prima-facie case and the balance of convenience was also in favour of defendant no.2 in regard to the property which was purchased by the defendant no.2 by the registered sale-deed dated 17.07.1997. Though the appellant has produced copies of certain documents before this Court to substantiate the plea that the plaintiff was in possession of the property which was sold by the wife of the defendant no.1 to defendant no.2 on 17.07.1997, these documents cannot be considered at this stage as the appellant had failed to produce these documents before the trial Court. 8 In the result, the appeal fails and is dismissed with no order as to costs. JUDGE APTE