1 ao342-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa APPEAL FROM ORDER NO.342 OF 2011 ALONGWITH CIVIL APPLICATION NO. 485 OF 2011 Abhijit Raosaheb Magdum .. Appellant V/s. Yalappa Rama Shinge .. Respondent ..... Mr. P. M. Arjunwadkar for the appellant. ..... CORAM : A. S. OKA, J. DATE : APRIL 21, 2011. P.C.:­ Heard the learned counsel appearing for the appellant. The appellant is the plaintiff in a suit for specific performance. The specific performance is sought as regards four different agreements for sale of the suit property. Application for temporary injunction made during the pendency of the suit has been rejected by the impugned order. 2. The learned counsel appearing for the appellant submitted that 2 ao342-11 merely because there were four different agreements executed by the respondents, the trial Court could not have doubted the genuineness of the transaction. He submitted that the execution of the agreements has been admitted in the reply cum written statement of the respondent. He pointed out that in every agreement there is a recital which records delivery of possession and receipt of consideration by the respondent. He pointed out that apart from the suit agreements, there was other documentary evidence of possession of the appellant in the form of receipts of the sugar factory. He submitted that only on the ground that the name of the appellant is not entered in the revenue record, the case of possession has been disbelieved. He submitted that there were other documents on record for substantiating the possession of the appellant. He, therefore, submitted that interim relief protecting the possession of the appellant and restraining the respondents from creating third party interests ought to have been granted. 3. I have carefully considered the submissions. The learned counsel appearing for the appellant has tendered compilation of documents. Two portions of the land bearing Gut No.608 at village 3 ao342-11 Dattawadi are subject matter of the suit. The area of one portion is 32 Ares and the area of the other portion is 7 Ares. The first agreement is dated 22nd April, 2002 which is in respect of area of 22 Are out of the land admeasuring 32 Ares. The price mentioned in the agreement is of Rs.1,80,000/­ out of which a sum of Rs.1,00,000/­ was purportedly paid as earnest money to the respondent. There is a recital in the agreement regarding delivery of possession. The second agreement relied upon by the appellant is dated 25th July, 2002. The agreement relates to the same property bearing Gat No. 608. It is in respect of area of 32 Ares which is inclusive of area of 22 Ares which is covered by the first agreement. In the second agreement there is a recital that total consideration shall be of Rs. 2,45,454/­ and a sum of Rs.1,40,000/­ has been paid by way of earnest money. In both the said agreements, it is stated that balance consideration will be payable at the time of execution of the sale deed. The second agreement also contains recital regarding delivery of possession. 4. The third agreement is dated 12th March, 2003. It is in respect of the entire area of 32 Ares and the price mentioned therein is of 4 ao342-11 Rs.2,61,824/­. It records that the earnest money of Rs.2,45,400/­ has been received by the respondent and the balance amount was payable at the time of execution of the sale deed. The next agreement is dated 28th May, 2007. The said agreement is again in respect of the same area of 32 Ares which records that the total consideration in respect of the area of 32 Ares was agreed as Rs.2,61,824/­ and the entire amount has been paid to the respondent on the same day. The further agreement dated 12th January, 2004 is again in respect of the other portion admeasuring 7 Ares and the executant of the agreement is the mother of the respondent­ defendant. The consideration shown is of Rs.57,000/­ out of which a sum of Rs.25,000/­ is stated to be given by way of earnest money. In the said agreement, it is stated that the balance consideration will be payable at the time of execution of the conveyance. The said agreement records a recital that the possession has been handed over to the appellant. The last agreement is dated 28th May, 2007, executed by the respondent in respect of the same area of 7 Ares in which there is a reference to the agreement dated 12th January, 2004, executed by the respondent's mother and it records that possession has been handed over to the appellant. However, it records that in 5 ao342-11 case the respondent fails to execute a sale deed, he would return total consideration of Rs.57,000/­ to the appellant. The suit has been filed by the appellant for specific performance of aforesaid agreements. 5. Perusal of the written statement shows that the case of the respondent is that his signature was obtained on blank papers. It is contended that the respondent was in need of money for the purpose of his daughter's marriage and, therefore, a loan was taken by the respondent from the appellant. It is contended that as loan of Rs.1,00,000/­ could not be repaid by the respondent, signatures of the respondent were obtained on blank stamp papers. 6. Considering the manner in which the successive agreements are executed, the learned trial Judge has recorded a prima facie finding that the transaction does not seem to be of sale but the real transaction appears to be different. The learned Judge observed that there was no necessity to get successive agreements executed in such a manner. The perusal of the agreements shows that the prima facie finding recorded by the trial Court as regards the nature of the 6 ao342-11 transaction is fully justified. The learned trial Judge is right in recording a prima facie finding that the successive agreements create a serious doubt regarding the real nature of the transaction. The leanred trial Judge observed that there was no necessity of getting the agreement dated 28th May, 2007 executed which records consideration of Rs.2,61,824/­ which is the price reflected in earlier agreement dated 12th March, 2003. In the circumstances, the learned trial Judge has declined to grant equitable relief of temporary injunction which is discretionary in nature. 7. Scope of an Appeal under Clause Rule 1(r) of Order XLIII of the Code of Civil Procedure, 1908 is limited. There is no perversity or illegality shown in the impugned order passed by the trial Court. Accordingly, Appeal is dismissed. It is however, made clear that the observations made by the trial Court as well as by this Court are only prima facie and tentative observations and the trial Court will decide the suit without being influenced by the said orders. 8. Civil Application No.485 of 2011 does not survive and the same is disposed of. 7 ao342-11 9. Hearing of the suit is expedited. JUDGE