1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 709 OF 2009 IN APPEAL FROM ORDER NO. 585 OF 2009 Dhyandeo Laxman More & Anr. ... Appellants. Vs. Mahadev Krishnaji Ranade & Ors. … Respondent. Mr.G.S. Godbole i/b Ms. ManjiriS. Parasnis, for the Appellants. Mr. Abhay Patki with S.N. Chandrachood for Respondent Nos.2 & 3. ..... CORAM: S.C.DHARMADHIKARI,J. DATE : 22 nd APRIL, 2010. P.C. 1. This Appeal from Order challenges the refusal of temporary injunction by the Trial Court. 2. Shri Godbole appearing on behalf of the Appellants/original Plaintiffs contended that the temporary injunction was sought so as to restrain the original Defendants from causing obstruction and interference to peaceful possession of the Plaintiffs of the suit land and also to restrain the Defendant from creating third party rights till the disposal of the suit. 3. Shri Godbole appearing on behalf of the Appellant submits that the Court below failed to appreciate that the appellants/Plaintiffs have 2 made out strong prima facie case. It was their plea before the Trial Court that the original Defendant No.1 had appointed Defendant Nos.2 and 3 as his power of attorney and executed the power of attorney in his favour which is registered. The original Defendant Nos.2 and 3 represented through that they are authorized to sell the suit land by Defendant No.1 and therefore, believing their version that the agreement of sale was entered into and the sum as set out more particularly in the plaint has been paid from time to time. 4. Shri Godbole submits that the Court below failed to consider the vital documents which have been produced, including the electricity bill. He submits that this was a prima facie stage. If the entire transaction is disputed and the version of the Defendants is that agreement for sale is executed as security for due repayment of the sum which has been advanced by the Plaintiff, then, the temporary injunction as prayed should have been granted. More so, when evidence of its execution, prima facie has also been produced in the form of affidavit and photographs. Further, prior to this version of the Defendants the documents would demonstrate that the Plaintiffs are put in possession of the suit land. For all these reasons, the Court below was in error in rejecting the application. In any event, when the amount of Rs.14,00,000/- has been paid admittedly, then, the Injunction restraining Defendants from creating third party rights at least ought to have been granted. Rejection of the application as a whole is 3 erroneous and therefore, this appeal should be allowed. 5. On the other hand Shri Patki appearing for the original Defendant Nos.2 and 3 submits that the order of the Trial Court is based on the fact that the Plaintiff ‘s own case has been falsified. The reasons assigned particularly in the Trial Court’s oder in paragraphs 12 and 13 would show that the entire transaction was nothing but a security for due repayment. This version goes uncontroverted. Affidavits placed on record to evidence possession are also not reliable and trustworthy even at this prima facie stage. Further, the Order of the Additional Commissioner, Pune in RTS Appeal No.83 of 1997 cannot be brushed aside even at this stage prima facie stage. 6. Having perused the Order under challenge and the documents brought to my notice, so also affidavit in reply filed in this Court, I am of the opinion that the Trial Court was in no error in concluding at this prima facie stage that the Plaintiffs are not in physical possession of the suit property. 7. If the version was that the sum of Rs.14,00,000/- has been paid and the physical possession was handed over, then, beyond agreement for sale which has been allegedly executed, the Plaintiffs could have produced some documents to demonstrates that they have been put in physical possession. In all fairness it is stated that such documents are not executed, therefore, when there is no recital so as to evidence that 4 Plaintiffs put in physical possession, then, Trial Court’s reliance on the Order of the Additional Commissioner, Pune and the version of the Defendants which remained uncontroverted cannot be said to be erroneous or perverse. Therefore, the temporary injunction as prayed to protect the alleged physical possession has been rightly refused. Appellants have failed to make out the prima facie case and consequently, the injunction could not have been granted in their favour. 8. However, at this prima facie stage, when the version that the Plaintiffs have paid a sum of Rs.14,00,000/- to Defendant Nos.2 and 3 is yet to be tested, it would be fair, just and proper to direct that until the suit is heard and disposed of, the Defendants should not create any third party rights or transfer the suit property in any manner. 9. The hearing of the Special Civil Suit No.1812 of 2007 is expedited. Appeal is disposed of in these terms. No costs. (S. C. DHARMADHIKARI, J.)