1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 189 OF 2009 Smt. Rasika Bhausaheb Birajdar & Ors. .. Appellants/ (Org.Defts. 1 to 4) Versus 1) Shri Shankar Lingappa Pattanshetty Since deceased through his heirs - a) Kashibai Shankar Pattanshetty & Ors. .. Respondents/ Orig. Plaintiffs Mr.C.D.Konale,Advocate, for the appellants. Mr.G.S.Godboke i/b. Siddharth Rangne,Advocate, for the respondents 1A to 1E Mr. Sachin Chindarkar i/b. M.R.Deshpande, for respondents Nos. 2 to 4. CORAM: J.H.BHATIA, J. DATE : 12th April, 2010. P.C. 1. Heard the learned Counsel for the parties. 2. The suit property consists of ground floor and first floor having area of 37.2 sq. mtrs. each. The defendant Nos. 1 to 4 are the appellants before this Court, while the respondents are the original plaintiffs. According to the plaintiffs, on 25.9.1997, they had entered into an agreement with the defendant No.1 to purchase the suit property for consideration of Rs.6.21 lakh and out of the 2 said consideration amount, a sum of Rs.1 lakh was paid as earnest money to the defendant No.1. The plaintiffs were put in actual possession of the ground floor, while the first floor was in possession of a tenant. The plaintiffs filed Special Civil Suit No.260 of 2000 for specific performance of the contract. Pending the suit, the tenant vacated the first floor on 19.3.2002. According to the plaintiffs, they had purchased the goodwill of the said tenant and also got possession on the basis of the attornment in their favour . The plaintiffs filed an application seeking temporary injunction restraining the defendants from causing any interference in their possession over the first floor pending the suit. According to the defendants, actual possession of the first floor was handed over to them by the tenant and they are actually living in that house. The trial Court granted temporary injunction and that order is challenged in the present appeal. 3. The agreement for sale reveals that the suit property stands in the names of defendants Nos. 1 to 4, Defendants Nos. 2 to 3 are minor children of the defendant No.1. The defendant No.1 had entered into an agreement for sale for herself and on behalf of the minors. The agreement for sale also shows that it was necessary to obtain necessary permission from the District Court before sale of the property of the minors. Admittedly, no such permission has been obtained. Even though in the agreement for sale, there is a mention that the possession of the first 3 floor was given to the purchaser by attornment of the tenancy, but admittedly fact is that actual possession was with the tenant. The suit for specific performance is still pending and as noted above, permission for sale of the minors' property has not been obtained from the District Court. The relinquishment deed dated 19.3.2002 executed by the tenant Shivayya Irrayya Marbadmath clearly shows actual possession of the first floor was handed over by him to the defendants. The defendant no.1 had taken possession on behalf of the defendants. 4. The learned Counsel for the plaintiffs contends that as the property was standing in the joint names of the defendants Nos. 1 to 4, it is not necessary to obtain permissino of the District Court for sale of the property. This contention can be looked into at the time of final hearing of the suit. 5. Taking into consideration the circumstances, prima facie, it appears that the actual possession of the first floor is with the defendants, who are the real owners of the property. The defendants do not get title over the property unless sale deed is actually executed. They can only retain possession of the ground floor which was put in their actual possession at the time of agreement for sale. Taking into consideration these circumstances, the plaintiffs could not get any temporary injunction about the property which is not in their possession. The trial 4 Court did not consider these facts properly. It is true that the relief of temporary injunction is discretionary and normally the appellate court will not interfere in the exercise of that discretion unless it appears to be per-se wrong or illegal. Taking into consideration the facts and circumstances, I am of the opinion that the impugned order is per-se wrong and the balance of convenience is also not in favour of the plaintiffs but in favour of the defendants. Therefore, it is necessary to interfere in the present matter. 6. For the aforesaid reasons, the Appeal is allowed. The impugned order is hereby set aside and the application for temporary injunction filed by the plaintiffs stands rejected with a condition that the defendants shall not create any third party interest and shall not induct any other person in the first floor of the suit property pending suit. 7. As the Appeal itself is finally disposed of, C.A. No.228 of 2009 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)