1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 705 OF 2008 __________________________________________________________________ Office Notes, Office Memoranda of Coram, apperances, Court' s orders or Court's or Judge's orders directions and Registrar's orders Mr.Anturkar, Senior Counsel with Mr.Sugandh B.Deshmukh, adv.for appellant. Mr.C.G.Gavnekar, adv.for respondents no.1 & 2 Coram: Smt.R.P.SondurBaldota J. Dated : 1 st September, 2008. P.C. : 1. The appellant in a suit for specific performance of agreement dated 23rd November, 1995 sought two interim reliefs. The first relief, is to restrain the respondents, inter-alia, from disturbing his possession of the suit properties, described at para 2 of the plaint. The second relief is that the respondent should not create any third party rights in respect of that property. Mr.Anturkar, states that, after the refusal of the interim reliefs to the appellant, the respondents have created third party rights in respect of the suit property. Consequently, the second interim 2 relief has become infructuous. 2. He however presses the appeal in respect of the first interim relief of protection of his possession of the suit property. The appellant claims to be in possession of “the suit properties” by virtue of an averment in the agreement for sale and a receipt dated 9th December, 1998 titled as “visar pavati”. He claims to have been cultivating the land for the crop of Bajra. However, he has no evidence whatsoever of the cultivation or any other overt act of possession. 3. The respondents though, do not dispute execution of two documents dated 23rd November, 1995 and 9th December, 1998 contended that they had not handed over possession of any properties to the appellant. 4. The agreement dated 23rd November, 1995 is for sale of undivided half share in Survey No.22, Hissa No.2A, Survey No.23 Hissa No.1A, Survey No.24, Hissa No.3 and Survey No.24, Hissa No.4A. The instant 3 suit is filed in respect of the land admeasuring 17 Ares out of Survey no.23, Hissa No.1A, entire Survey No.24, Hissa No.3 and land admeasuring 17 Ares out of Survey No.24, Hissa No.4A. Thus, it is seen that the suit properties described at para-2 of the plaint is different from the properties in respect of which agreement dated 23rd November, 1995 was executed. In the circumstances, the appellant cannot claim to be in possession of the suit properties by virtue of the agreement for sale and visar pavati. 5. The facts of the case, also throw up a question of limitation for consideration of the court. The learned Trial Judge has rightly observed that since the question of limitation is a mixed question of law and fact, it will have to be decided at the final hearing of the suit. 6. In the circumstances, the Appeal from Order is dismissed in limine. [JUDGE] 4