1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 582 OF 2010 Sandhuram Tekchand Ahuja (Since deceased through his Lrs) 1A Smt. Dayabai Gurumukhdas Sindhi and others .. Appellants Versus Parmanand Maniklal Galani and others .. Respondents Shri P. A. Pisal, Advocate for Appellant Shri K. C. Sant, Advocate for the Respondent No. 1. CORAM : S. V. GANGAPURWALA, J. DATE : 13TH OCTOBER, 2010. PER COURT : . Heard Shri Pisal, learned counsel for appellants and Shri Sant, learned counsel for the respondent No. 1. The present respondent No. 1 had filed a suit for possession on the count that after the decree was executed in the year 1991, present appellant dispossessed the plaintiff in the year 1997 and as such a suit for possession is filed. The Trial Court decreed the suit. The 2 defendants preferred an appeal. The Appellate Court dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. The defendants have assailed the said judgments in the present second appeal. 2. Learned counsel for appellants strenuously submitted that the plaintiff has not been in a position to prove the delivery of possession to him pursuant to a decree passed in a suit for specific performance of contract. The panchanama is merely a paper panchanama, no actual physical possession was handed over. The defendants have proved their case by cross examining the plaintiff and as such it was erroneous on the part of lower Appellate Court to draw an adverse inference for not stepping into the witness box and not examining any other witness. According to learned counsel the decree for specific performance that was passed itself was time barred and could not have been passed. The appeal filed by the defendant was time barred and the application for condonation of delay was rejected. As such the defendants have preferred a writ petition before this Court and the same is pending. According to learned counsel the present second appeal deserves to be heard along with said writ petition and impugned judgment deserves to be stayed till the 3 decision of said writ petition. 3. Per contra Shri Sant, learned counsel for the respondent No. 1/plaintiff submitted that the bailiff has also been examined. A minor error in not telling the correct date would not be material. It is impossible for a bailiff to remember the names of police men who had accompanied in the year 1991 for taking the possession. According to him in the course of judicial proceeding the possession was delivered to the plaintiff. Even when the possession was taken at that time movable articles were in said house, as such the list of same was made and the said articles were handed over to the judgment debtor. A receipt to that effect is also on record. The defendants have not examined the said person who has given the receipt of having received all the movables. 4. With the assistance of learned counsel for respective parties I have gone through the judgment delivered by both the Courts. The fact that the suit for specific performance was filed by the present plaintiff and same was decreed is not disputed. Even the execution proceedings were taken up by the present plaintiff and in the said execution petition the sale deed was 4 executed in favour of present plaintiff and also the possession was delivered on 19.10.1991. All these is substantiated by the documentary evidence. The plaintiff has come with specific case that in the year 1997 the defendant has dispossessed him and as such the present suit is filed. Once it is established that pursuant to a decree of Civil Court the plaintiff was put in possession of suit property, in such circumstances, the title of plaintiff cannot be disputed. The plaintiff has got a right to possession of the suit property. Though, it has been argued by the learned counsel for the appellant that writ petition challenging the order of the lower Appellate Court rejecting an application for condonation of delay in filing an appeal against the decree passed in a suit for specific performance is pending, still the same would not have any effect on the present proceedings. The present proceedings are independent proceedings, it eventually the present appellant succeeds in the proceedings which are taken up against the decree of specific performance then the appellant would have a independent right. 5. In the light of above facts no substantial question of law is made out, as such second appeal is dismissed, however with no order as to costs. 5 6. At this stage, learned counsel for appellants seeks some time to vacate the premises on the ground that two of the appellants are minors and it would take some time to find out alternate accommodation. Shri Sant, learned counsel for the respondent No. 1 resists such a prayer. 7. Taking into account the fact that since 1997 the appellants are in possession of suit property. I grant three months time to appellants to vacate the suit premises on condition that appellant No. 1A Smt. Dayabai files an undertaking to this Court for herself and on behalf of appellant Nos. 2A and 3A stating that the appellants would vacate the suit premises on or before 15 th January, 2011 and that she will not create any third party interest or encumbrance over the suit property. The said undertaking shall be filed within three weeks from today. [S. V. GANGAPURWALA, J.] bsb/Oct. 10