1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.39 OF 2009 ----------------------------------------------------- Gaurav s/o Prataprao Desai, Appellant Versus Jeevan s/o Siddhuji Chavan. Respondent Shri C.T. Jadhav, advocate for the appellant. Shri D.Y. Nandedkar , advocate for Respondent. CORAM: P. R. BORKAR, J. DATE : 20TH AUGUST, 2009. P.C.: 1. By this appeal from order, the original defendant in Spl.C.S.No. 15/2008 challenges the order of temporary injunction passed against him on application Exh.5 decided on 22.01.2009. 2- Briefly the case is stated : It is the case of present respondent-plaintiff that he entered into an agreement of sale in respect of three properties with the present appellant and his parents. All the three properties are situated at village Chudava Tq. Purna District Parbhani. The total consideration was Rs. 14.00 lacs. By this time amount of Rs.11,88,000/- was paid and parents of the present appellant have executed sale deed in respect of two out of the three properties which are in possession of the respondent-plaintiff. The 2 dispute is in respect of gat No.265/1 to the extent of 1H 60R at village Chudawa. The boundaries are described in plaint. 3- It is the case of the present respondent that he was put into possession of the suit property on the date of agreement of sale and the present appellant was disturbing his possession. The suit was filed for specific performance of agreement of sale. An application Exh.5 is given therein for temporary injunction for not disturbing the possession of plaintiff and not to alienate the property. 4- The appellant-defendant has denied execution of agreement of sale and stated that he never agreed to sell the property to plaintiff- respondent. He is in possession of the suit property as described in claim clause of the plaint and therefore he challenges by this appeal, the order of temporary injunction granted to the extent restraining him from disturbing possession of the plaintiff over gat No.265/1 to the extent of 1 H 60R. He does not challenge the injunction that he should not alienate the property saying in the suit that he does not intend to sell. 5- The learned Civil Judge who passed the impugned order on 13.03.2009 has stated that in the agreement of sale possession was shown to have been delivered to the plaintiff on 21.06.2007. In pursuance of the agreement the parents of the defendant have executed four sale deeds in favour of the respondent-plaintiff and his wife on 28.11.2007. The plaintiff-respondent has also paid major amount and in the circumstances, he was inclined to hold that plaintiff-respondent was in possession of the property. 3 6- The learned Civil Judge has not considered other evidence though he referred to it. The 7/12 extracts are produced on record of gat No.265/1 and as per the entries for the years 2007-2008, 2008-2009 the defendant-appellant was shown to be in possession of the property as owner and possessor of the property. The agreement of sale is the disputed document and the advocate of the appellant stated that the agreement does not bears signature of his client. It is worth noting that no affidavit of any neighbor is produced on record. In my opinion, merely relying on the agreement of sale, which is a disputed document, the trial court ought not to have issued temporary injunction. He should have to asked for more evidence particularly in view of the entires in the 7/12 extracts for the year 2007-2008 and 2008-2009. In these circumstances, this appeal will have to be allowed partly. The temporary injunction to the extent of restraining the defendant and from interfering into possession of the plaintiff is concerned, that portion of the order is hereby set aside. The temporary injunction in respect of restraining defendant from alienating the property is concerned, it is not interfered with. Appeal from order is accordingly disposed off. 7- The parties are at liberty to move the trial court for expeditious hearing. ( P.R. BORKAR ) JUDGE aaa/ 39.09 ****