1 wp10009.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 10009 OF 2010 Raosaheb S/o Kashinath Nalawade and others ..PETITIONERS -VERSUS- Devidas S/o Bajirao Wakale and another. ..RESPONDENTS ..... Mr. A.D. Kasliwal, advocate for petitioners. Mr. U.N. Shete, Advocate for respondents. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 18th February, 2011. PER COURT : 1. The defendants are before this Court challenging the judgment delivered by the appellate Court reversing the order of trial Court passed below Exhibit-5 and granting temporary injunction to respondents-plaintiffs. 2. Advocates Mr. Kasliwal with Mr. M.A. Khan for petitioners- defendants point out that these orders are obtained in a latter suit i.e. Regular Civil Suit No. 10 of 2010 filed by respondent simplicitor for injunction. He states that substantive civil suit i.e. Special Civil Suit No. 509 of 2008 is filed by the present respondents only for declaration that sale deed executed by him is illegal and not binding. In that suit, a similar prayer vide Exhibit-5 has been made and that prayer is still pending. He therefore contends that this latter suit is not maintainable. In the alternative and without prejudice, he has also attempted to urge that the material on 2 wp10009.10 record like revenue entries show possession of present petitioners. Lastly he has urged that the petitioners had moved application under Section 10 of Civil Procedure Code for stay to Regular Civil Suit No. 10 of 2010. 3. Advocate Mr. Shete for respondent nos.1 and 2 has supported the impugned order. He contends that the nature of controversy in Special Civil Suit no. 509 of 2008 and Regular Civil Suit No. 10 of 2010 is entirely different. 4. The question whether Regular Civil Suit No. 10 of 2010 is maintainable or not need not be decided at this stage. Prima facie it is apparent that it is a suit filed not on the basis of title but on the basis of possession only and protect it. Special Civil Suit No. 509 of 2008 is suit in which title may be relevant. 5. The situation therefore can be resolved by directing the trial Court in which Special Civil Suit no. 509 of 2008 is pending to decide the application Exhibit-5 therein as early as possible and in any case by 30th March, 2011. The injunction already operating and granted in Regular Civil Suit no. 10 of 2010 shall continue to operate till the trial Court decides that application at Exhibit-5 i.e. still 30th March, 2011. 6. The said Court shall decide the application at Exhibit-5 pending before it uninfluenced by the observations in earlier orders passed below Exhibit-5 in Regular Civil Suit No. 10 of 2010 or then by District Judge-2 in Misc. Civil Appeal no. 79 of 2010 on 09.09.2010. Respective counsel shall be heard and with fresh application of mind, the orders will be passed below Exhibit-5. 3 wp10009.10 7. With these directions and observations the present Writ Petition is disposed of. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp10009.10