1 wp 8376.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8376 OF 2011 Dnyanoba Deorao Dhavale .. Petitioner Versus Chandrakant Bhaurao Kharabe .. Respondent Shri S. R. Deshpande, Advocate for the Petitioner. CORAM : S. V. GANGAPURWALA, J. DATE : 12TH DECEMBER, 2011. PER COURT : . The present petitioner is the original defendant. The present respondent filed a suit for injunction. The plaintiff also filed an application for temporary injunction. The Trial Court allowed the application. Aggrieved thereby the defendant filed an appeal. The District Court dismissed the appeal and confirmed the order of the Trial Court. The defendant has assailed the said orders in the present writ petition. 2 wp 8376.11 2. Shri Deshpande, the learned counsel for the petitioner submits that the present petitioner is in possession of the suit property on the basis of an agreement of sale dated 11.02.1989 executed by the plaintiff in his favour. The Courts below have failed to consider the said agreement of sale. The defendant/present petitioner has also filed on record the affidavits of seven persons i. e. the adjacent owners who have testified about possession of the present petitioner. The learned counsel submits that the only ground on which the relief has been granted to the plaintiff is that the defendant has not filed the suit for specific performance. According to the learned counsel, even if suit for specific performance is not filed within limitation, still the defendant can protect his possession on the basis of Sec. 53-A of the Transfer of Property Act. The learned counsel relies on the judgment of the Apex Court in a case of Shrimant Shamrao Suryawanshi Vs. Pralhad Bhairoba Surywanshi reported in 2002(2) Mh. L. J. 01 and the judgment of learned Single Judge of this Court in a case of Sakharam Vs. Laxman reported in 2006(2) Mh. L. J. 644. 3. The proposition that even if the suit for specific performance is barred by limitation, still a party can protect his 3 wp 8376.11 possession on the basis of principle of part performance of contract U/Sec. 53-A of the Transfer of Property Act need not to be disputed, the same is a settled proposition. 4. The Courts below have concurrently observed that the name of the plaintiff appears in the cultivation column right since beginning and this prima facie shows that the agreement was not acted upon. The Courts have considered the long standing revenue entries with regard to the possession. The entries are taken in official course of business. Even otherwise the injunction is in force since 20th December, 2009 against the petitioner. The Courts below have taken into consideration all these circumstances and have arrived at plausible conclusion. 5. In the light of the above, no case for interference is made out in the writ jurisdiction of this Court under Article 227 of the Constitution of India. As such, the writ petition is dismissed, however, with no order as to costs. 6. Needless to state that the observations made herein are prima facie in nature and the Trial Court shall decide the suit on its own merits dehors the observations made herein. The Trial 4 wp 8376.11 Court shall decide the suit as expeditiously as possible and preferably within a period of nine (9) months from today. [ S. V. GANGAPURWALA, J. ] bsb/Dec. 11