1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1362 OF 2010 DIGAMBAR RAMBHAU MARAL AND ORS V/S RAMPRABHU @ SHESHRAO SOPANRAO NIRAS ... Shri S.S.Shinde, Advocate for the petitioners ... CORAM : S.B.DESHMUKH,J. Dated : 8.3.2010 PER COURT :- 1. Heard. 2. Petitioners are defendants in RCS No.197 of 2008, pending in the court of the learned Civil Judge J.D. Sonpeth, District Parbhani. Respondent is the plaintiff. 3. Suit property consists of a piece of land admeasuring 80 Ares out of Gut No.22/B, as is apparent from the plaint on record (Exhibit "C"). The suit is simplicitor suit for perpetual injunction, filed on 1.10.2008. In the suit, application Exhibit 5 for temporary injunction (Exhibit "D") was filed. It was rejected by the trial Court on 23.1.2009. 2 Aggrieved thereby, Misc. Civil Appeal No.4 of 2009 was filed by the plaintiff. It was decided on 30.11.2009. The order passed by the trial Court rejecting the application Exhibit 5 dt.23.1.2009 has been quashed and set aside. Said application is allowed. Defendants are temporarily restrained from obstructing possession of the plaintiff over the suit property till disposal of the suit. 4. Learned counsel for the petitioners submits that the plaintiff claims to have purchased the suit property by registered sale deed dt. 24.4.2002. According to him, this is not the transaction of out and out sale but it is a money lending transaction Certain other terms were agreed upon amongst the plaintiff and defendant No.1. He, therefore, submitted that the plaintiff had not acquired title to the suit property. On the point of possession, according to him, plaintiff was not in actual and physical possession of the suit property. The plaintiff was never inducted in to the suit property He points out that the plaintiff is resident of different village which is around 25 kms. away from the suit property. According to him, the plaintiff did not try to get his name recorded in the 7/12 extract of the suit property till the year 2008, despite the fact that he claims to have purchased the property on 24.4.2002. Such an inordinate delay, according to him, is a circumstance to show that he had not purchased the property. He assails the order passed by the first appellate court and submits that the said order is illegal. 3 5. I have given due consideration to the submissions of the learned counsel for the petitioners. Learned counsel for the petitioners fairly concedes the relationship amongst the petitioners. Petitioners 2 and 3 are sons of petitioner No.1. I have considered the order passed by the trial Court. I have taken note of the order passed by the first appellate Court in paragraph No.6 in which it considered the documents which were available to the Court. He has referred to the copy of the sale deed executed in favour of the plaintiff. The first appellate Court arrived at a conclusion in paragraph No.8 that the plaintiff is entitled for protection and interference in the order passed by the trial Court is necessary. With this observation, the first appellate Court upset the order passed by the trial Court and injuncted the petitioners. 6. After giving due consideration to the submissions of the learned counsel and carefully considering the order passed by both the courts below, in my view, first appellate Court has justifiably substituted the judicial discretion. This is not a stage at which a finding is to be recorded by the Court about the transaction dt.24.4.2002, which is disputed seriously by the parties concerned. In my view, no case is established for invoking extra ordinary jurisdiction to quash and set aside the order passed by the first appellate Court. 7. In the result, Writ Petition stands dismissed in limine. No order as to costs. However, the trial Court is directed to decide the suit 4 based on the evidence brought on record by the parties and in accordance with the provisions of law, without being influenced by this order since it is on the point of temporary injunction alone. ( S.B.DESHMUKH, J.) ... akl