1 ao386 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO.386 OF 2011 Bonny @ Bernard Andrades ...Appellant vs. Milton Rafial Pareira & Ors. ...Respondents Mr.Atul Damale i/b Mr.Sanjay Gawde for the appellant Mr.N.V.Walawalkar, Sr.Counsel i/b Mr.Satyajeet Mirajkar for the respondent nos.1 and 2 CORAM : A.S.OKA,J. DATE : APRIL 11,2011 P.C.: 1 Heard the learned counsel for the appellant. The appellant is the original plaintiff. The suit is filed by the appellant for declaration that the deed of conveyance dated 20th May 2005 which is registered in the office of Sub Registrar is void and not binding on him. The second prayer is for delivery and cancellation of the said deed of conveyance. The third prayer is for perpetual injunction restraining the respondent from dispossessing the appellant of his possession over the suit property which is subject matter of the conveyance. By the impugned order, the learned trial Judge has declined to grant interim relief of temporary injunction. 2 The learned counsel for the appellant submitted that there was no reason to deny interim relief. He submitted that in any case, a limited interim relief in terms of the prayer clause (b) of the application ought to have been granted. He urged that in fact, the trial Court has not at all considered the prayer clause (b) and no reasons have been assigned for not granting such injunction restraining the respondents from creating 2 ao386 third party rights and from changing permanently the nature thereof by developing the same by erecting the building/s thereon. 3 I have considered the submissions. There is no dispute about the execution of the conveyance on 20th May 2005 by the appellant and that the said conveyance was registered in the office of Sub Registrar. The suit has been filed on 30th November 2010 i.e after more than five years after the date of conveyance. 4 The contention of the appellant is that the respondents misguided him as far as the actual price of land is concerned. According to the appellant, the respondents assured him to pay Rs.12,00,000/- per guntha towards the price of the land. It is contended that the respondents informed him that the amount shown as market value for the purposes of stamp duty will be paid by cheques and balance amount will be paid in cash. Thus, according to the appellant, a representation was made that total price will be Rs.1,82,20,000/-. The case made out by the appellant is that in the conveyance, it is stated that the appellant is absolute owner and is in exclusive possession of the entire land though the appellant had only 1/6th share jointly along with other members of the family. 5 In paragraph 10 of the impugned order, the learned trial Judge has noted that the appellant is well educated person and on 20th May 2005, he went to the office of the Sub Registrar and executed the sale deed. The trial Court observed that on the basis of the sale deed, the respondents have acquired title and admittedly the appellant has received a sum of Rs.11,30,000/-. The learned trial Judge observed that as the respondents have 3 ao386 become owners under the sale deed, they have absolute right to enjoy the property subject matter of the sale deed and their rights cannot be curtailed. 6 Apart from the fact that it is not possible to find fault with the aforesaid reasoning of the trial Court, the fact remains that the suit is belatedly filed more than five years after the date of execution of the sale deed. This is relevant in the context of the fact that the appellant is a educated person and he admittedly remained present before the Sub Registrar and executed the sale deed. The trial Court has assigned reasons for not granting prayer clause (b) by observing that as the respondents are in possession as absolute owners of the suit property, their legal rights cannot be curtailed. 7 No case is made out for interference with the impugned order which is discretionary and equitable in nature. The appeal is dismissed. 8 However, all contentions of the parties on merits of the suit are kept open. 9 The suit will be decided on its own merits without being influenced by the impugned order and confirmation thereof by this Court. 10 Civil Application no.540 of 2011 does not survive and the same is disposed of. JUDGE