1 F.A.No.669 of 2006 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO.669 OF 2006 1. Subhash s/o Shankarrao Garje Age 48 years, Occu.Business 2. Balaji s/o Shankarrao Garje, Age 46 years, Occu.Business, 3. Satish s/o Shankarrao Garje, Age 44 years, Occu.Business All R/o Agroya Nagar, Barshi road, Latur, District Latur .. APPELLANTS VERSUS Smt.Prabhavatibai w/o Prabhuappa Bawage, Age 66 years, Occup. Household, R/o Mitra Nagar, Latur, District Latur .. RESPONDENT Mr R.K.Ashtekar, Advocate for appellants Mr P.V.Mandlik, Senior Counsel with Mr A.S.Gandhi, Advocate for respondent CORAM : MRS MRIDULA BHATKAR, J. DATE : 30th September, 2011 ORAL JUDGMENT 1. Appeal is filed against the judgment and order dated 21.3.2006 passed by the Civil Judge, Senior Division, Latur in Special Civil Suit No. 123 of 2004. Respondents is the landlord of the open plot. Respondent is an owner of the CTS No.9909/2008 i.e. corresponding Municipal 2 F.A.No.669 of 2006 Council House No.954/2002 at Barshi road, Latur. Respondent let out said plot to the appellants in the year 1986 at the monthly rent of Rs. 250/-. Appellants continued to stay on it as a tenant till 1998. In the year 1998 both appellants and the respondent entered into an agreement of sale dated 29.6.1998 for Rs.3,50,000/- and respondent agreed to sell the said plot to the appellants – tenants. Appellants paid Rs.10,000/- as an earnest amount to the respondent. The possession of the suit plot remained with the appellants. However, as remaining amount was not paid by the appellants and appellants were enjoying the said property without payment of any money to the landlord, the landlord filed a suit for specific performance bearing R.C.S.No.166 of 1999. Appellants filed counter claim for refund of money. Both the suits were dismissed on merit by the trial Court on 20.3.2004. Thereafter, landlord did not prefer the appeal, but the appellants filed appeal for refund of money, which was dismissed for want of prosecution on 2.6.2006. In the meantime, respondent filed Special Civil Suit No.124 of 2004 for possession, mandatory injunction and damages. Plaintiff i.e. landlord claimed damages at the rate of Rs. 1,000/- per month from 18.9.2004 till 19.10.2004. 2. The suit was contested by the defendants i.e. the present appellants by filing the written statement. The Civil Judge, Senior Division tried the said suit and held that the plaintiff was entitled to mandatory injunction and to get the possession of the suit property and also held that the possession of the defendants, i.e. present 3 F.A.No.669 of 2006 appellants 1 to 3 is not lawful on the basis of the said agreement of sale. The suit was decreed on 21.3.2006. Being aggrieved by the said judgment and order, defendants filed this appeal. 3. Following points arise for determination : (i) Whether plaintiff i.e. respondent is entitled to decree of possession, mandatory injunction and the damages at the rate of Rs.1,000/- per month ? Yes. (ii) Whether the judgment and decree passed by the trial Court requires interference ? No. 4. Perused judgment and order and the paper-book. Respondent, i.e. the original plaintiff Prabhavatibai has examined herself on oath so also defendant No.1 has also tendered evidence. After going through the judgment and order I am of the view that no illegality is found in the judgment and order passed by the learned Civil Judge, Senior Division, Latur. In the beginning of the hearing of the appeal, when learned Counsel for the appellants opened his submissions, a specific query was made to him that what is the illegality or error committed 4 F.A.No.669 of 2006 by the learned Civil Judge, Senior Division while decreeing the suit. On perusal of the judgment, learned Counsel for the appellants could not point out specifically any illegality or error committed by the Civil Judge, Senior Division in holding that the plaintiff is entitled to mandatory injunction and the possession of the defendants is illegal. It is to be noted that agreement of sale is unregistered and only earnest money of Rs.10,000/- was paid. Moreover, it is pointed by the learned Counsel for the respondent that since 1999 appellants are enjoying the property i.e. the suit plot and carrying on their business without paying any amount of the consideration towards the said agreement of sale. It is also pointed out that the respondent, i.e. landlord has not accepted any amount towards either licence or rent for use of land from the defendants. In these circumstances no legal right is created in favour of the appellants. These facts also show that appellants are using the premises without any payment and hence, are not entitled to stay on the suit plot. As the appeal filed by the appellants against the order of dismissal of their counter claim is dismissed for default itself shows that the appellants are not serious in pursuing the matter. 5. The parties are litigating since 1999 and suit is decreed in March 2008. Considering the appreciation of the evidence by the trial Court and the finding given therein, nothing remains in this appeal and the original plaintiff i.e. respondent cannot be deprived of having the fruits of the decree. No fault can be found with the view taken and order passed by the learned Civil Judge, Senior Division. With these 5 F.A.No.669 of 2006 observations, appeal is dismissed and the order of Civil Judge, Senior Division, Latur dated 21.3.2006 passed in Regular Civil Suit No.124 of 2004 is maintained. ( MRS MRIDULA BHATKAR, J.) (vvr/669.06fa)