1 wp 8247.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8247 OF 2011 Sopan Maruti Gaike .. Petitioner Versus Raju Nanasaheb Shinde .. Respondent Shri R. N. Dhorde, Advocate for the Petitioner. CORAM : S. V. GANGAPURWALA, J. DATE : 15TH NOVEMBER, 2011. PER COURT : . The petitioner is the original defendant. The present respondent/original plaintiff filed a suit for injunction. Along with the suit the plaintiff also filed an application for temporary injunction. The Trial Court allowed the application for temporary injunction. Aggrieved thereby the defendant preferred an appeal before the District Court. The District Court dismissed the appeal and confirmed the judgment of the Trial Court. The defendant has assailed the said judgment in the present writ petition. 2 wp 8247.11 2. Shri Dhorde, the learned counsel for the petitioner contends that the Courts have not taken into consideration the fact that the real brothers of the plaintiff have filed a affidavit saying that the present petitioner is in possession of the suit property. The same has also not been referred by the Courts. At this stage actual physical possession has to be considered. Simply because name of the plaintiff appears in the revenue record, that in itself would not be sufficient to hold possession of the plaintiff and more particularly when the defendant has filed affidavits of various persons including the real brothers of the plaintiff on record. 3. Both the Courts have concurrently allowed the application of temporary injunction filed by the plaintiff. The Courts have also observed that the agreement of sale does not prescribe about delivery of possession. Even the present petitioner has filed suit for specific performance. In the said suit, the present petitioner has filed an application for temporary injunction. The said application was rejected. This aspect has also been taken into consideration by the Courts. Both the Courts have also taken into consideration the revenue record and fact that the agreement of sale does not prescribe about delivery of possession 3 wp 8247.11 and have arrived at plausible conclusion. 4. The relief U/O 39 Rule 1 and 2 of the Code of Civil Procedure is discretionary. This Court would be loath in interfering with the orders passed by both the Court. In the light of the above, the writ petition is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/Nov. 11