1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD APPEAL FROM ORDER NO. 74 OF 2009 Vijaykumar s/o Narsimlu Sunkarwar, age 55 yrs., occ. Business and agril., r/o Juni Kapad Line, Kinwat, Tq. Kinwat, Dist. Nanded ...Petitioner VERSUS 1 Abdul Karim s/o Mohd. Ali Hirani, age 55 yrs., occ. Business, r/o Khoja Colony, Kinwat, Tq. Kinwat, Dist. Nanded, presently residing at H.No.5-8-37, 5-D 3rd Floor Mahavir Nest Apartment, Charga Ali Lane, Hydeerabad – 500 001 (Andhra Pradesh), 2 Abdul Wahid s/o Abdul Gani, age 48 yrs., occ. Business, r/o Juni Kapad Line, Kinwat, Tq. Kinwat, Dist. Nanded, 3 Municipal Council, Kinwat, through its Chief Officer. ...Respondents ..... Shri S.V.Kurundkar, advocate for the appellant Shri S.D.Karkare, advocate for respondent no.2 ..... Coram : Shrihari P. Davare, J. Dated : 15 th July, 2009. ORAL JUDGMENT : 1 Perused. With the consent of both the learned respective counsel for the parties, the present Appeal from Order is taken up for final hearing. 2 The appellant herein is the original plaintiff and the respondents herein are the original defendants in Special Civil Suit No.85/2009 pending before the learned Civil Judge, Senior 2 Division, Nanded. The present Appeal from Order arises out of the order passed below Exh.8 in Special Civil Suit No. 85 of 2009 by the learned Civil Judge, Senior Division, Nanded, whereby the application for temporary injunction was rejected. The appellant herein has filed suit for specific performance of contract in respect of property bearing Municipal No. 10-60, situated at Juni Kapad Line, Kinwat, District Nanded on the basis of oral agreement dated 18.10.2008. In the said suit, the appellant also prayed for declaration that the sale deed executed by defendant no.1 in favour of defendant no.2 be declared as null and void and not binding upon the appellant and also prayed for perpetual injunction restraining defendant nos. 1 and 2 from interfering in the peaceful possession of the appellant, as well as restraining them from creating further third party interest in the suit property and also prayed that defendant no.3 be restrained from effecting the mutation on the basis of sale deed registered at Sr.No.1529 of 2009 dated 11.5.2009. The appellant herein preferred application for temporary injunction in the said suit accordingly. 3 Briefly stated, respondent no.1 herein (original defendant no.1) was owner in possession of the property 3 bearing Municipal No. 10-60, situated at Juni Kapad Line, Kinwat, District Nanded. The appellant was in need of the suit premises for opening a medical shop, since his son has started medical practice on 19.8.2002. The property of respondent no.1 was suitable for the said purpose. Hence, the appellant requested respondent no.1 to provide the open land on lease basis. Accordingly, after negotiations, respondent no.1 leased out open plot in the suit land admeasuring 17 x 9 ft. on monthly rent of Rs.700/- from 18.7.2004. Accordingly the appellant claims that he has raised construction on the said premises incurring expenditure therefor. He also claims that rent amount was paid regularly to respondent no.1. Thereafter it is the case of the appellant that respondent no.1 showed his inclination to dispose of the said suit property, as he wanted to shift to Hyderabad. 4 Accordingly it is the case of the appellant that on 18.10.2008, after negotiations, an oral agreement took place between the appellant and respondent no.1 in presence of two witnesses and respondent no.1 agreed to sell the suit property to the appellant for consideration of Rs.7,84,000/-, out of which an amount of Rs.25,000/- was paid by the 4 appellant to respondent no.1 as earnest money. The appellant claims that on the same day, respondent no.1 delivered possession of entire property to him. It is further the case of the appellant that it was agreed between the appellant and respondent no.1 to execute the sale deed by 30.4.2009. It is alleged that since the relations between the appellant and respondent no.1 were cordial, no written agreement was executed between them regarding the said transaction. 5 It is the contention of the appellant that he persuaded respondent no.1 to execute the sale deed, but he avoided therefor. Hence, the appellant issued legal notice on 14.4.2009 and same was published in the local news paper on the same day. Respondent no.1 replied the said notice on 2.5.2009 denying the contentions raised in the said notice issued by the appellant and respondent no.1 informed the appellant that he has already sold out the suit property to respondent no.2 on 23.3.2009. Hence, the appellant has filed the afore said Special Civil Suit No. 85 of 2009 and preferred the application for temporary injunction therein below Exh.8. 6 After hearing the contentions of the plaintiff and 5 defendant nos. 1 and 2 and after assessing the evidence produced by them, the learned Civil Judge, Senior Division, Nanded rejected the said application Exh.8 for temporary injunction on 20.6.2009. Being aggrieved and dissatisfied by the said order, the appellant/original plaintiff has preferred the present Appeal from Order. 7 On perusal of the impugned order, it is clear that the learned Judge has rightly observed that the claim of the appellant/original plaintiff is based upon oral agreement dated 18.10.2008 and the case of defendant no.2 is based upon the registered sale deed executed by defendant no.1 in his favour on 23.3.2009. Moreover, even assuming for the sake of assumption without admitting it that an oral agreement was executed between the appellant and respondent no.1 on 18.10.2008. The said oral agreement was for consideration of Rs.7,84,000/- and amount of Rs.25,000/- was paid by the appellant to respondent no.2 as per the contention of the appellant, but curiously enough, the said agreement was not reduced in writing, though the alleged transaction was for huge amount and the explanation given therefor that the relations between the appellant and respondent no.1 were 6 cordial, apparently, is not digestible. Moreover, it is also pertinent to note that the alleged oral agreement between the plaintiff and defendant no.1 was for Rs.7,84,000/- in October, 2008, but the subsequent transaction of the sale between defendant nos. 1 and 2 dated 23.3.2009 by registered sale deed was for Rs.4,50,000/- and, therefore, it is not conceivable that alleged oral agreement of sale between the plaintiff and defendant no.1 is for higher amount than the subsequent registered sale deed between defendant nos. 1 and 2 dated 23.3.2009 for the lower amount. 8 It is undisputed that respondent no.2/original defendant no.2 has purchased the suit property by way of registered sale deed dated 23.3.2009 and he is the owner of the suit property and, therefore, the learned Trial Judge has rightly rejected the application for temporary injunction preferred by the appellant, whose claim is based upon oral agreement, in respect of not creating third party interest in the suit property and not to create mutation entry on the basis of afore said registered sale deed. 9 However, it cannot be disputed that the 7 appellant/plaintiff is in possession of the land admeasuring 17 x 9 ft. out of the suit property in the capacity as lessee of defendant no.1 for the monthly rent of Rs.700/- and the appellant herein claims to have constructed a shop thereon, apparently with the permission of respondent no.1 and, therefore, the possession of the said leasehold land of the plaintiff out of the suit property is required to be protected in the interest of justice unless the respondents follow due process of law therefor. 10 In the circumstances, the present Appeal from Order is allowed partly. The impugned order passed by the learned Civil Judge, Senior Division, Nanded below Exh.8 in Special Civil Suit No. 85 of 2009 on 20.6.2009 stands modified to the extent that the respondents are restrained from disturbing the possession of the appellant herein in respect of leasehold land admeasuring 17 x 9 ft. out of the suit property without following due process of law, and the impugned order regarding other prayers shall remain same. It is made clear that the learned Trial Judge shall not be influenced by the observations made in the present order while deciding Special Civil Suit No. 85 of 2009 on merits finally. Appeal from Order 8 No. 74 of 2009 stands disposed of accordingly. (SHRIHARI P.DAVARE, J.) dbm/ao74.09