1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Appeal against Order No. 110 of 2008 (Shri Prabhakar s/o Gopal Yadav Vs. Ramesh s/o Danchand Vaswani & anr.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. B.P. Bhatt, Adv. For the appellant. Mr. M. Dhobe, Adv. For R-1. Mr. N.G. Jetha, for R-2. CORAM : Smt. Vasanti A. Naik, J. DATE : 9 th January, 2009 Heard the learned counsel for the parties. By this appeal, the appellant challenges the order passed by the Civil Judge, Senior Division, Nagpur, on 14th August, 2008, allowing the application filed by the respondent no.1 and restraining the appellant and the respondent no.2 from creating a third party interest in the suit property. A suit was filed by the respondent no.1 for specific performance of contract. He sought a direction against the defendants to execute the sale deed in respect of 0.60 R of land from Kh. No. 63 admeasuring 1.21 H.R. It 2 was pleaded by the plaintiff that the defendant no.1 had executed an Isar Chitthi which was attested by the defendant no.2, on 3/5/2005. An amount of Rs. 11,000/- was paid by the plaintiff at the time of execution of the Isar Chitthi. Later on, on 16/5/2005, an agreement of sale was executed between the parties. The plaintiff paid an amount of Rs. 2,50,000/- to the defendants. The defendants filed their reply and pleaded that a suit was filed by one Ramchandra Pandhari Tembhurkar against the defendant no.1 for declaration and injunction and the same was pending. The defendants pleaded that both the defendants were the owners of the suit property and the Isar Chitthi was executed individually by the defendant no.1 and the defendant no.2 was not a party to the agreement. The learned counsel for the appellant submitted that the appellant had not signed the agreement of sale and had merely signed the token Chitthi as a witness. According to the learned counsel for the appellant, the appellant is not a party to the agreement of sale. Hence 3 the trial Court was not justified in granting a temporary injunction against the appellant. The learned counsel for the respondent no.1 supported the order passed by the Civil Judge, Senior Division, Nagpur, on 14/8/2008. It is submitted on behalf of the respondent no.1 that the token Chitthi was executed by the defendant no.1 and the defendant no.2 had singed the same as a witness. In the backdrop of this fact, according to the learned counsel for the respondent no.1, the trial Court found that the plaintiff had a prima facie case and the balance of convenience would also lie in favour of the plaintiff. The learned counsel for the respondent no.2 supported the case of the appellant. I have considered the submissions made on behalf of the parties and have also perused the impugned order dated 14/8/2008, and the token chitthi and the agreement of sale dated 16/5/2005. On a perusal of the impugned order and the documents, it is clear that the trial Court judiciously exercised its discretion in granting the temporary injunction 4 and restraining the defendants from creating any third party interest in the suit property. The trial Court gave due weightage to the token Chitthi which was executed by the defendant no.1 as it was signed by the defendant no.2 as a witness. Since from the token Chitthi, it was clear that the defendant no.2 was also aware of the transaction, the argument that the defendant no.2 was not aware of the transaction in suit, was prima facie unacceptable. In the facts and circumstances and from the documents on record, it appears that the plaintiff had succeeded in proving the prima facie case and also proving the balance of convenience, in favour of the plaintiff. There is no reason to interfere with the impugned order dated 14/8/2008, in the instant appeal. In the result, the appeal against the order is dismissed with no order as to costs. JUDGE RMP