1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1197 OF 2008 WITH CIVIL APPLICATION NO.1457 OF 2008 Shri Mulidhar Bhika Chavan & 7 Ors. ....Appellants Versus Shri Ramdas Eknath Kashmire & 7 Ors. ....Respondents. Shri P.N. Joshi for the Appellants. Shri Girish R. Agarwal for the Respondents. CORAM : R. V. MORE, J. DATED : 20TH APRIL, 2009. P.C. Heard, Mr. Joshi, learned Counsel for the Appellants and Mr. Agarwal, learned Counsel for the Respondents. 2. The Appeal from Order is filed by the Original Defendants challenging the order dated 29th September, 2008 passed in application at Exhibit-5 in Special Civil Suit No.288 of 2007 granting temporary injunction restraining the Appellants/Original Defendant Nos. 1 to 7 from interfering in Respondents Nos.1 & 2/Original Plaintiffs’ possession in the suit property. 3. The agreement to transfer the suit land was executed by the 2 Appellants in favour of the Respondent Nos.1 & 2 on 30th October, 2006. The total consideration was Rs.64,00,000/-. It is the case of Respondent Nos. 1 & 2/Plaintiffs that out of the total consideration, the amount of Rs.16,00,000/- was given to the Appellants by cheque and the amount of Rs.16,00,000/- was given by way of cash. The Appellants does not dispute the receipt of an amount of Rs.16,00,000/- which was given by cheque, however denied the receipt of amount of Rs.16,00,000/- in cash. It is the contention of the Appellants that the agreement in question was executed by way of security towards the loan. 4. The question whether Respondent Nos. 1 & 2 are entitled for specific performance shall be decided at the time of hearing of the suit. For the purpose of temporary injunction, what is required to be considered is prima-facie case, balance of convenience and who is in possession of the suit property. So far as the possession of the suit property is considered, the Respondent Nos. 1 & 2 relied upon recital of possession in the agreement to sale. The have produced the electricity bills. They have also filed affidavits of the Agriculturists. It is specifically contended by the Respondent No.1 that they have cultivated grapevine in part of the suit property. The Appellants on the contrary disputed contention of the Respondent Nos. 1 and 2 regarding possession and contended that in fact they are in possession of the suit property. To substantiate their contention they have relied upon the electricity bills and the order of the Sub-Divisional Officer passed subsequent to the impugned order. 5. So far as the electricity bills are concerned, the Appellants 3 produced only two electricity bills for the period from 31st January, 2007 to 8th July, 2008. The amount of bills is Rs.70/- and Rs.630/- respectively. The Respondent Nos.1 & 2, on the contrary produced on record statements of bank, alongwith electricity bills showing payment of said bills are made by them. 6. The Appellants have filed photographs of the suit land and these photographs show that there are angles put in the suit land for the purpose of cultivation of the grapevine. It is specific case of Respondent Nos.1 and 2 that after execution of an agreement they have cultivated grapevine. This contention of the Respondent Nos. 1 & 2 is specifically denied by the Appellants. However, photographs filed by the Appellants support the Respondent Nos. 1 and 2’s contention that they are in possession of the suit property. 7. So far as the order of the Sub-Divisional Officer is concerned, the same is passed after the impugned order thereby setting aside the order of Tahsildar under which Respondent Nos. 1 & 2's names were recorded in records of right of suit property. Mr. Agarwal, submitted that this order of the Sub-Divisional Officer is already challenged by filing the Revision before higher authority. In any case, the 7/12 extract has got only presumptive value. At the most it can be considered as one of the circumstances to show the possession of the person in the property. 8. The statement has also been made by Mr.Agarwal that the 4 balance consideration of Rs.32,00,000/- has already been deposited in the Civil Court, Senior Division, Nashik by the Respondent No.1 & 2. The said statement, is not disputed by the learned counsel for the Appellants. The learned Trial Judge after scrutiny of the evidence recorded positive findings that the Appellants’ are not in possession and the Respondent Nos. 1 & 2 are in possession of the suit property. In the facts and circumstances mentioned, I do not find any reason to interfere with the aforesaid order. Since the Respondent Nos. 1 & 2 have in my opinion proved prima-facie case, even the balance of convenience will lie in favour of the Respondents. Taking over all view of the matter, I do not find any substance in the Appeal from Order. 9. The learned Counsel for the respective parties made common statement that the suit is at the stage of framing of issues. Learned Counsel for the Appellants requested expeditious hearing of the Suit. This request is supported by the learned Counsel for the Respondent Nos.1 & 2. Taking into consideration the controversy involved in the suit and in the interest of the justice, I direct the Trial Court to dispose of the suit as expeditiously as possible and preferably within the period of one year from the date of the receipt of this order. Needless to mention that the above suit shall be disposed of on its own merit and without being influenced by the observations made in the impugned order. The Appeal from order is dismissed, accordingly. 10. In view of the dismissal of the Appeal from Order, the Civil 5 Application No.1457 of 2008 will not survive and therefore, the same is disposed of. (R. V. MORE, J.)