1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.1126 OF 2009 WITH CIVIL APPLICATION NO.1392 OF 2009 WITH CIVIL APPLICATION NO.247 OF 2010 Sou. Anita Shankar Karande ...Appellant. v. Shri Baban H. Pansare & Ors. ...Respondents. Mr. U.B.Nighot, adv. For the Appellant. Mr. Shriram S. Kulkarni, adv. For the Respondent Nos.1 and 2. CORAM : J.H. BHATIA, J. DATED : APRIL 13, 2010 P.C. 1 Heard the learned counsel for the Parties. The respondent nos.1 and 2 are the original plaintiffs. Respondent no.3 is the original defendant no.2 and respondent no.4 is the original defendant no.3. The present appellant is the original defendant no.1. For the sake of convenience, parties shall be referred to as per the designation in their suit. Plaintiffs filed Special Civil Suit No. 464/09 contending that the plaintiffs had agreed to purchase the suit property bearing gat no.464 admeausring 59 R from the original defendant no.2 as per the agreement for sale dated 6.11.1995. Plaintiff no.1 got the sale deed executed and registered on 7.8.07 for consideration of Rs.2,50,000/- and on the same 2 date, he was put in possession of the suit property. Later on, the plaintiff no.1 sold suit land to his daughter, who is plaintiff no.2 under the registered sale deed dated 9.4.2008 and thus, she is in possession of the property. According to the plaintiffs, defendant no.1 had played fraud on the defendant no.2 and had got the sale deed executed on 17.4.2007 about the same property without payment of any consideration. Plaintiffs contended that their right over the property is related back to the agreement dated 6.11.95. With these contentions, plaintiffs sought declaration that the sale deed dated 17.4.2007 in favour of the defendant no.1 is not binding on them and they also sought perpetual injunction restraining the defendant no.1 from causing any obstruction in their possession over the suit property. Defendant no.2 filed written statement and supported the claim of the plaintiffs. 2 Defendant no.1 contested the suit as well as application. He claims to be bonafide purchaser of the suit property as per the registered sale deed dated 17.4.2007. According to him, he had purchased the property for consideration of Rs.1,85,000/- and on the date of execution of the sale deed, he was also put in possession of the property. Earlier agreement was not acted upon. According to him, sale deed dated 7.8.07 in favour of the plaintiff no.1 has no relation or connection with the 3 alleged agreement dated 6.11.95 because terms of the contract were totally different. The trial Court after hearing the parties allowed the application, Ex.5 filed by the plaintiffs and restrained the defendant no.1 from causing any obstruction in possession of the plaintiff over the suit land. Hence, this appeal. 3 After perusal of the documents as well as pleadings of the parties, it appears that the plaintiff no.1 had entered into agreement to purchase the suit land under registered agreement for sale dated 6.11.1995 for consideration of Rs.45,000/- . As per that agreement, he had paid an amount of Rs.35,000/- to the defendant no.2 and was to pay the balance amount of Rs.10,000/- at the time of execution of the sale deed. The said agreement also reveals that the possession of the land would be handed over to the plaintiff on execution of the sale deed. Admittedly, the suit land was Ramoshi Vatan land. Watans were abolished and the land was re-granted to the original Vatandars, however, with the condition that the land could not be sold away without prior permission of the collector, therefore, agreement dated 6.11.95 also indicated that permission of the collector was to be taken and within two months thereafter sale deed could be executed. Admittedly, condition of obtaining permission from the collector was necessary. In the year 2002, 4 an amendment was made and it was no more necessary to obtain permission from the collector for transfer of vatan land. Therefore, sale deed could have been got executed on the basis of agreement dated 6.11.1995 immediately after the permission from the collector became no more necessary. However, it appears that for about 5 years or so no steps were taken by the plaintiff no.1 to get the sale deed executed. 4 Whatever may be the reason, on 17.4.2007 registered sale deed was executed by the defendant no.2 in favour of the defendant no.1 for consideration of Rs.1,85,000/- and the said sale deed reveals that the possession of the land was actually handed over by the defendant no.2 to the defendant no.1 on the date of execution of the sale deed. He also applied for taking mutation entry of land in the revenue record. It appears that after the notice for the mutation entry was issued, on 7.8.07, the plaintiff no.1 got the sale deed executed from the defendant no.2. That sale deed reveals that the defendant no.2 had sold the land to the plaintiff no.1 for consideration of Rs.2,50,000/- and that whole of the consideration amount was paid about eight days before the execution of the sale deed. There was no reference to the agreement of 1995. That sale deed shows that the defendant no.2 had put the plaintiff no.1 in possession of the land, while infact as per the sale deed dated 5 17.4.07, defendant no.2 had already put the defendant no.1 in possession of the land. It is material to note that on 25.2.2009 , plaintiff no.1 got the correction deed executed by the defendant no.2 and in that correction deed, details of the earlier agreement of 1995 were given and it was also mentioned that the amount of consideration of Rs.2,50,000/- included payment of Rs.35,000/- in 1995. If these documents are looked into carefully, it appears that there is material inconsistency in the sale deed dated 7.8.07 and the agreement for sale of 6.11.1995. Firstly, sale deed dated 7.8.07 does not make any reference to that agreement. Secondly, agreement of 1995 was for sale of the land for consideration of Rs. 45,000/- while sale deed dated 7.8.07 speaks about the consideration of Rs.2,50,000/-. It indicates that the agreement of 1995 was abandoned and the sale deed dated 7.8.07 was a different agreement between the parties. Correction deed dated 25.2.2009 speaks about the payment of Rs.35,000/- in 1995 and the balance payment a few days before the execution of the sale deed while the sale deed dated 17.8.07 shows that whole of the consideration of Rs.2,50,000/- was paid eight days before the execution of the sale deed. These inconsistencies in the documents in favour of the plaintiff no.1 were not taken into consideration by the trial Court. Revenue authorities also passed order in January, 2009 6 holding that the defendant no.1 is in possession of the suit land on the basis of sale deed dated 17.4.2007. The above record goes to show that the defendant no.1 is in possession of the suit land since 17.4.2007. It is material to note that said sale deed has been challenged by the subsequent purchaser the plaintiff no.1 but the original vendor never filed any suit challenging that sale deed, though she filed written statement supporting contentions of the plaintiff. 5 It is true that normally the appellate Court will not interfere in the discretion exercised by the trial Court while granting discretionary relief of temporary injunction but if the order of the trial Court appears to be per-se wrong or against the record or if it indicates that the trial Court has not considered the material before it properly, the appellate Court can certainly interfere. In view of the facts and circumstances before the Court, I find that trial Court had not considered the material properly and passed the impugned order, which is per-se wrong. 6 For the aforesaid reasons, appeal is allowed. Impugned order is hereby set aside and the application, Ex.5 stands rejected. Defendant no.1 however, shall not create any third party interest and shall not induct any third person in the property pending the suit. Whatever observations are made in this judgment are for the purpose of 7 deciding the appeal arising from Ex.5 and, therefore, these observations are prima-facie and will not be taken into consideration while deciding the suit on its own merits. 7 As the appeal itself is allowed and finally disposed off, Civil Application No.1392/09 and Civil Application No.247/10 do not survive and stand disposed off accordingly. (J.H. BHATIA,J.)