1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR APPEAL AGAINST ORDER NO. 73 OF 2008 ( Annasaheb Haribhau Ulhe & Ors. vs. Vishnu Ishwarrao Bhende ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. AUGUST 28, 2008. Heard Shri Modak, Advocate for the appellants – plaintiffs and Shri Joharapurkar, Advocate for the respondent – defendant. Shri Modak, Advocate states that by giving undue importance to preparation of bank draft for Rs. Five lakhs, the Court below has presumed the story of oral agreement of sale by the deceased Nalini in favour of present respondent to be correct and thereafter has also presumed that the present respondent has continued in possession. He contends that as agreement admittedly is oral, the part performance is not at all relevant and hence the Court below could not have presumed such possession and could not have protected it. He points out that after the death of Nalini, suit field was let out to present respondent for agriculture purposes in the year 2007-08 and after the expiry of 2 that year, the present appellants started cultivating the field and at present they are in possession. He states that the entry in the name of respondent taken in 7B form has been set aside by the Sub- Divisional Officer in appeal and field has been cultivated by the present appellants. He, upon instructions, states that the appellants have got documents to show that they have purchased the seeds, fertilizers and undertaken the cultivation operations and he is seeking time to place the same on record. Shri Joharapurkar, Advocate for the respondent, on the other hand, argues that the pleadings nowhere demonstrate that after the death of Nalini, at any time, the possession of suit field was handed over by present respondent to the appellants. He points out that Nalini died on 13.6.2006 and thereafter a demand draft of Rs. Five lakhs for payment to the appellants was prepared in December 2006 and as names of the appellants were yet to be mutated, the same was cancelled. He further states that the Court below has correctly appreciated the controversy and in present circumstances, no interference is warranted in the matter. He also adds that if this Court directs to show his bonafide, the respondent will deposit the 3 entire amount of consideration before the trial Court within a period of four weeks from today. Shri Modak, Advocate, in reply, states that there is no question of respondent depositing any amount because it would seriously prejudice the present appellants – original defendants who are admittedly in possession. The perusal of impugned order shows that the Court below has considered the material produced before it and in view of the conduct of present respondent of preparing bank draft for Rs. Five lakhs in the name of husband of the deceased Nalini i.e. present appellant No.1, it has found it a prima facie case in favour of the respondent. The written statement nowhere contains specific assertion that on any particular date, the present respondent vacated the suit field and placed the appellants in possession thereof. In the circumstances, I do not find any jurisdictional error or perversity in the approach of the trial Court. However, considering the fact that at the relevant time, the sale consideration as put forth by the respondent was Rs. 19 lakhs and out of it only Rs.50,000/- has been alleged to have been received by the present appellants/ deceased Nalini, I find that interest of justice requires the respondent 4 – plaintiff to deposit balance amount of Rs.18,50,000/- (Rs. Eighteen lakhs fifty thousand only) with the trial Court within a period of four weeks from today. If the amount is so deposited, the trial Court shall invest the same in any Nationalised Bank initially for a period of three years. The arrangement made is provisional and after considering the facts which emerged prima facie on records. It will not prejudice the case of the appellants in any way. The proceedings in Special Civil Suit No. 100 of 2008 are expedited and the Civil Judge, Senior Division, Wardha, shall try to decide the same as early as possible and in any case within a period of two years from the date of communication of this order to it. During the pendency of the suit, the respondent – plaintiff shall not change the nature of suit property and shall not create any third party interest in it. With these observations, the present Appeal against Order Is disposed of with no order as to costs. JUDGE *GS.