1 AO NO.112/2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO.112 OF 2010 (with CA No.13448/2010) (Vasant s/o Sangram Tiparale vs. Mathurabai w/o Gyanoba Bhopale and others) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. Anil M.Gaikwad, Adv., for the appellant. Respondent no.1 & 2 served. Mr.Milind Patil, Adv., for R.3. ... CORAM: K.U.CHANDIWAL, J. DATE:22-12-2010 1. Mr. A.M.Gaikwad, learned Counsel for the appellant informs, respondent no.4 is a formal respondent, since absconding from ten years. Consequently, no notice for respondent no.4. 2. Heard. The appellant is a defendant in Special Civil Suit No. 176/2009. The plaintiff and the appellant independently moved application below Exh.5 and 25, seeking injunction against each other. The learned Judge, by order dt.22.6.2010, accepted case of the respondent/plaintiff and 2 AO NO.112/2010 indicted the appellant's / defendant's case and hence the Appeal From Order. 3. It is not in controversy that based on sale deed for 1 H. 17 R. and 36R., the appellant seeks rights in the disputed property. The controversy revolves to an agreement dt.17.6.2008, purportedly executed by the appellant in favour of deceased Gyanoba ( the vendor). The date corresponds to the date of the sale deed in favour of the appellant. This agreement incorporates, the appellant has not received possession of the property and it is to be re-conveyed. 4. Though the learned Judge has referred about variance in the consideration referred in the agreement and the sale deed, however, that was not the point to be dissected as it was for the parties to explain at the time of hearing. The fact remains, there is sale deed in favour of the appellant which, prima facie, declares him to be a paramount 3 AO NO.112/2010 title holder. Any agreement to which reference is given dt. 17.6.2008 may have its impulse, however, prima facie, it will not be dissolving and defusing contentions of the appellant to be in possession of the disputed property. The position as owner of the appellant is further cemented by three affidavits of the adjoining owner filed before the learned Civil Judge, Junior Division. Unfortunately, the affidavits remained in wrapper as they are not considered by the learned Judge. 5. The above survey illustrate that, in the counter claim raised by the appellant, he had a prima facie good case to get injunction clamped against the respondent herein. Mere reliance to the agreement, by itself, should not have the effect of tilting the balance against the appellant. The reference of revenue entries in paragraph no.9 has its effect in favour of the appellant. 4 AO NO.112/2010 6. The grant of injunction is guided by the principles, explained by the Hon'ble Apex Court in Seema Arshad Zaher and others Vs. Municipal Corporation, Greater Mumbai and others) (2006 (5) Mah.L.J. 218). The parameters are as under: a "(i) existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction; o (ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's rights, the balance of convenience tilting in favour of plaintiff; and f (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands." 5 AO NO.112/2010 7. I find, prima facie case, balance of convenience, rests in favour of the appellant than the respondent. The loss that the respondent may sustain, by the appellant remaining in possession, can be taken care. Hence following order: ORDER (a) The order of the learned Civil Judge, 22.6.2010 is set aside. Instead thereof, following order is passed: (b) The respondent in the appeal ( plaintiff in the suit) shall not cause disturbance in the possession of the appellant over the suit property ( Exh.25) before the learned Judge is granted. However, the appellant shall deposit an amount of Rs.20,000/- before the learned Joint Civil Judge, Senior Division (III), Latur, within six weeks. The disbursement of this amount will be dependent on the fate of the suit. 6 AO NO.112/2010 (c) Considering the rival contentions and the stage of the suit, the learned Judge seized with the matter shall make an endeavour to dispose of the said proceedings by the end of Dec., 2011. Appeal From Order is allowed to the extent as above. The observations are prima facie in nature. Civil Application disposed of. (K.U.CHANDIWAL) JUDGE ... AGP/112-10ao