(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 1794 OF 2011 1. Nandkumar s/o. Bhimashankar Khedkar, Age : 33 years, Occupation : Business, R/o. Majalgaon, Taluka : Majalgaon, District : Beed. 2. Sopan s/o. Dyanoba Bhale, Age : 40 years, Occupation : Business, R/o. Majalgaon, Taluka : Majalgaon, .. Petitioners District : Beed. (Original plaintiffs) versus 1. Samandarkhan s/o. Sardarkhan Pathan, Age : 60 years, Occupation : Agriculture, R/o. Majalgaon, Taluka : Majalgaon, District : Beed. 2. Dr. Anand s/o. Asaramji Rathi, Age : 33 years, Occupation : Medical Practitioner, R/o. Majalgaon, Taluka : Majalgaon, .. Respondents District : Beed. (Original defendants) ....................... (2) Mr. S.J. Salunke, Advocate, for the petitioners. Mr. B.S. Kudale, Advocate for respondent no.2 / caveator. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 15TH MARCH 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. S.J. Salunke, for the petitioners, and Adv. Mr. B.S. Kudale, for respondent no.2 / caveator. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 3. As the interest of respondent no.1 is taken care of, by respondent no.2, service of notice upon Rule, on respondent no.1 is dispensed with. 4. The petitioners have challenged the order dated 29-1-2011, passed by the learned Ad hoc District Judge-1, Majalgaon, in Misc. Civil Appeal No. 2/2011, thereby dismissing the appeal filed by the petitioners / plaintiffs. The petitioners (3) have also challenged the order dated 20-12-2010, passed by the learned Civil Judge (Senior Division), Majalgaon, below Exhibit 5 in Regular Civil Suit No. 154/2010, thereby dismissing the application filed by the present petitioners seeking temporary injunction. 5. The trial court, as also, appellate court has found petitioners / plaintiffs not in possession and, therefore, rejected their prayer for grant of temporary injunction. The temporary injunction applied for was to protect possession, to restrain respondent no.1 and respondent no.2 from interfering with that possession and to restrain them from undertaking any construction activity on that property. 6. It appears that plot No. 386 forms subject matter of the suit. However, as per agreement obtained by the petitioners from original vendor i.e. respondent no.1, the said plot has been mentioned as portion of plot No.295 from Survey No. 386 of Majalgaon (District : Beed). 7. Adv. Mr. S.J. Salunke has contended that the trial court, as also, appellate court have given undue importance to the alleged finding of suit being barred by limitation and also about incorrect valuation. According to him, agreement dated (4) 18-3-2005 does not prescribe any time limit and the limitation to file suit will be of 3 years only after refusal to execute sale deed. He further points out that as the suit is for specific performance and after this agreement, on 14-6-2010 subsequent sale deed has been entered into between respondent no.1 and respondent no.2, valuation of that sale deed is totally irrelevant. 8. Though trial court has found time to be essence of contract, I find that consideration is only for the purposes of deciding whether suit is within limitation. It has noticed that agreement dated 18-3-2005 did not prescribe any time limit within which sale deed was to be executed. It has further found that period of three years has expired and sale deed dated 14-6-2010 has been executed thereafter. The said observations or then, observations about correct valuation of suit are not very relevant at this stage. 9. Very prayers made by the petitioners in their plaint and in temporary injunction application show wavering nature of pleadings. It is apparent that if the petitioners / plaintiffs are in possession, there is no question of respondents constructing on suit property and if respondents are in position to construct, the petitioners / plaintiffs are not in possession. The prayers seek orders restraining from interfering with possession and also from (5) raising further construction. 10. The position is prima facie correctly appreciated by both the courts and finding recorded about absence of possession with petitioners / plaintiffs cannot be said to be erroneous or perverse, at least, at this stage. 11. However, Adv. Mr. Kudale has pointed out that activity of construction is going on. He has urged that on 14-6-2010, a property in the vicinity i.e. Survey No. 387 is purchased by respondent no.2 and construction work is going on in the land. He has stated that no construction work has been undertaken on suit plot / suit property and said property is still open to sky. 12. Adv. Mr. Salunke has demonstrated that inspite of this stand before appellate court, the appellate court has specifically found that the construction work was going on, on the suit plot and the petitioners / plaintiffs are not in possession. Again, the finding per se is not proper but then, that finding is not sufficient to hold that the petitioners / plaintiffs are in possession. 13. In the result, the petition is partly allowed. (6) (i) The statement made by respondent no.2, through his Advocate, that he is not constructing anything on the suit property, is taken on record and it is directed that suit plot / property shall be kept open to sky till the suit is finally decided by the trial court. (ii) Respondent no.2 also, in the meanwhile, shall not create third party interest or shall not encumber the suit property in any way. (iii) Subject to this, proceedings in Regular Civil Suit No. 154/2010 are expedited and trial court shall attempt to decide the same as early as possible. 14. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp1794