1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1428 OF 2010 RAMBHAU HARIBHAU GUJARKAR & ANR.. -: versus :- MANDABAI GULABRAO PATIL Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri A.S.Chandurkar, Advocate for Petitioners. Shri M.P. Kariya, Advocate for Respondent. CORAM : B.P. DHARMADHIKARI, J. DATED : APRIL 16, 2010. 1. Heard finally. 2. The respondent filed suit to protect his possession as title holder relying on the sale deed. The same was opposed by the petitioner/ defendant who contended that sale deed executed in favour of one Jyoti Patil by defendant earlier was only nominal and she was not placed in possession. Similarly, it was contended that because of this position the respondent/ plaintiff also was never placed in possession. This was sought to be justified by producing affidavit of said Jyoti Patil and other neighbouring owners. The trial Court accepted affidavit of Jyoti and other neighbours and therefore, granted temporary injunction to respondent/ plaintiff. The respondent/plaintiff then filed Misc. Civil Appeal and the appellate Court refused to believe the affidavit of Jyoti contrary to recitals in the sale deed and because of the recital in the sale deed held that the respondent/ plaintiff has made out a prima-facie case and 2 therefore, granted temporary injunction and protected her possession. 3. Advocate Shri Chandurkar for the petitioner/ defendant contends that after considering the entire material on record injunction was granted by the trial Court and hence, the view contrary to the same could not have been taken by the learned lower appellate Court merely because such view is possible. To support this contention the learned counsel relied upon a judgment of the Hon'ble Apex court in Wander Ltd. Vs. Antox India P. Ltd., reported at 1990 (Supp) SCC 727 and in Skyline Education Institute (India) Pvt.Ltd. Vs. S.L. Vaswani, reported at 2010(2) ALL MR 427, wherein while considering the scope of interference in appeal against order, the Hon'ble Apex Court has held that merely because other view is possible lower appellate Court in such matters cannot take that view. 4. The learned counsel for the respondent/ plaintiff has relied on a judgment in Shamrao vs. Kakasaheb, reported at 2008(2) Mh.L.J. 819 to show that the view taken by the lower appellate Court and its approach in the matter is just and proper. 5. It is to be noted that Jyoti Patil is not party to the suit and her affidavit is after she allegedly recovered her dues because of sale deed in favour of the present respondent/plaintiff. The said affidavit, therefore, is required to be appreciated with caution and at this stage I find that lower appellate Court was right in accepting the recital in the registered document. 3 6. Shri Kankale, learned A.G.P., on the other hand, states that for valid reasons the lower appellate Court has not accepted the findings reached by the trial Court. 7. During pendency of the petition before this Court the petitioner/ defendant has filed Civil Application No.977 of 2010 complaining of dispossession, alleging that after the impugned judgment dated 6th February, 2010, delivered by Principal District Judge, Wardha the respondent / plaintiff has dispossessed the petitioner and has started construction on the suit property. The respondent/ plaintiff has filed an affidavit denying this fact. Both sides have annexed photographs in support of their contention of existing possession of the suit property. 8. The question is whether the lower appellate Court could not have rejected the affidavit of Jyoti Patil and other neighbours as the statement in affidavit made by Jyoti was contrary to recital in sale deed obtained by her. The said Jyoti is at the most a witness and she cannot be relied upon unless tested by cross-examination. The photographs produced by respondent/ plaintiff on record show that the construction up to plinth level is almost over and steel bars for erecting columns are already placed on suit plot. It shows his possession. 9. In these circumstances, it is apparent that it will be futile on the part of this Court to record any definite finding on possession on earlier dates when dispute arose. 4 The property must be preserved and made available to answer the decree as may be passed at the conclusion of the trial. 10. In view of this, the plaintiff shall stop further construction during pendency of the suit. He shall maintain status-quo and shall not create any third party interest or any encumbrance. 11. Proceedings in Regular Civil Suit No.248 of 2008 are expedited and the trial Court is directed to decide the same as early as possible and in any case by 31st December, 2010. 12. In view of above, no further orders in the matter are necessary and the writ petition is accordingly disposed of. No costs. JUDGE RR