1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5788 OF 2007 Shivaji Tukaram Kote and others - - Petitioners Versus Gangaram Chhabilal Dharmarth and Aushadhalaya Yewla and others - - Respondents Shri Abhijit C. Darudale, Advocate h/f Shri R. L. Kute, Advocate for the Petitioners. CORAM : V. R. KINGAONKAR, J. DATE : 30TH JUNE, 2009. PER COURT : 1. Heard. 2. The order rendered by the learned Judge of the Trial Court on application (Exh. 30) in Special Civil Suit No. 47/2004 is being challenged by the petitioners. 3. It appears that an agreement of sale dated 26.06.1995 was placed on record by the petitioners in the proceedings of the suit. The petitioners are original plaintiffs and filed suit for specific performance of the 2 agreement of sale or alternate relief. The learned Civil Judge (S.D.) came to the conclusion that though the agreement of sale does not show, any specific terms, factum of delivery of possession while the circumstances on record indicate that possession was delivered at the time of the agreement of sale and, therefore, it amounts to a conveyance, whereby transfer is effected. Therefore, the document was impounded and penalty was assessed. 4. The copy of document is filed along with petition. It is conspicuous that the document does not restrict delivery of possession until execution of the sale deed. There is significant omission to make any statement about the delivery of possession in the said document. The petitioners undertook liability to pay electricity charges for the motor pump installed on well in the land in question. The subsequent notice issued by the plaintiffs on 07.12.2001, calling upon the defendant No. 2 to perform their part, indicate that possession was delivered on 26.06.1995. The averments in the paragraph 4 of the plaint also show the factum of delivery of possession. Considering these aspects, the inference drawn by the Trial Court cannot be regarded as perverse. My attention was invited to the Division Bench judgment in Balwantgir Ganpatgir Giri through his LRs. Nanibai wd/o Balwant Giri and others vs. Mansi Construction and Developers [2006 (5) Mh.L.J. 306]. The facts of the present case are of quite different footings. In the case of Balwantgir 3 Giri through LRs. (Supra) there was specific term in the document which restricted delivery of possession of the property until execution of the sale deed. Considering the circumstances obtained in the present case the impugned order cannot be regarded as perverse or arbitrary. No interference is called for. The petition is therefore dismissed. [ V. R. KINGAONKAR, J. ] bsb/June09/wp 5788.07