1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Appeal Against Order No. 126 of 2008 (Vilas Yeshwantrao Ballal Vs. Smt. Meera wd/o Arvind Khadakkar) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : Smt. Vasanti A. Naik, J. DATE : 22 nd January, 2009 Heard Shri Dhareshwar for the appellant and Shri Anand Jaiswal for the respondents. By the instant appeal, the appellant challenges the order passed by the 5th Joint Civil Judge, Senior Division, Nagpur, on 24/10/2008, rejecting the application filed by the appellant for grant of temporary injunction restraining the legal heirs of the original defendant from excavating and constructing a building on any part of the Plot No. 62-A. It is stated by the appellant in the temporary injunction application that one Shri. M.V. Deshpande had executed a Power of Attorney in his favour to develop, construct and sell the buildings on Plot No.62-A, i.e. the suit 2 property. It is the case of the appellant that the defendant and his family members were close relatives of Shri. M.V. Deshpande. It is also the case of the appellant that Shri M.V. Deshpande had agreed to sell the piece of land in Plot No 62-A to the appellant/plaintiff for a consideration of Rs. 2.50 lakhs. It is pleaded by the plaintiff that an amount of Rs. 60,000/- was paid by the plaintiff to Shri M.V. Deshpande from time to time. It was pleaded by the plaintiff that the plaintiff was in possession of the suit property. However, the defendant and his family members attempted to occupy the suit property illegally and hence, an ad interim injunction was granted in favour of the appellant, restraining the appellant from disturbing the possession of the plaintiff over the suit property. The defendants i.e. the legal heirs of the original defendant, claimed to have become the owners of the suit property i.e. the eastern part of the Plot No. 62-A, in view of a registered gift deed executed by Shri M.V. Deshpande in their favour. It is the case of the plaintiff that some part of the property on the eastern side of Plot No. 62-A was sold by the 3 plaintiff to third parties and in this background, the alleged gift made by Shri M.V. Deshpande in favour of the legal heirs of deceased defendant, was illegal and invalid. Since the legal heirs of the original defendant, had started construction on the eastern side of Plot No. 62-A, an injunction to the aforesaid effect was sought by the appellant. The defendants filed their reply to the application for grant of temporary injunction and stated that there was no agreement between Shri M.V. Deshpande and the plaintiff either for making construction or sale of the property on the eastern side of plot no. 62-A. The defendants stated that Shri M.V. Deshpande executed a power of attorney in favour of the plaintiff to develop, construct, sell the building on plot No. 62-A but the same was pertaining to the portion on the western side only. There was no settlement between Shri M.V. Deshpande and the late defendant by which the ownership of a piece of land on the eastern side of plot no. 62-A was transferred to the plaintiff. It was stated by the defendants in the reply that the gift deed was executed in 4 their favour by Shri M.V. Deshpande, which was a registered document showing that Shri M.V. Deshpande had transferred entire eastern portion of the suit plot to the defendants and the defendants are the rightful owners of the eastern side of the plot no. 62-A. The trial Court, after considering the documents on record, came to a conclusion that the plaintiff did not have a prima facie case and the defendants were likely to suffer irreparable loss if the injunction was granted in favour of the plaintiff. The trial Court further held that the balance of convenience was also in favour of the defendants. The trial Court prima facie observed that the transaction between the original owner i.e. Shri M.V. Deshpande and the plaintiff was regarding only half portion towards eastern side of the Plot No.62-A and there was material on record to show that the eastern portion of the plot no. 62-A was gifted to the defendants. The Court considered all the agreements which were produced by the parties on record to hold that the power of attorney as well as the agreement executed between Shri M.V. Deshpande and 5 the plaintiff in the year 1987, pertained to the half portion of the plot no. 62-A on the western side. The submissions made on behalf of the appellant that he came in possession of the eastern portion of the plot no. 62-A and hence had a vested right under Section 53-A of the Transfer of Property Act and was also entitled to the benefit under the provisions of Section 19(1) of the Specific Relief Act, 1963, do not find favour with this Court. No fault could be found in the order rejecting the application. Even otherwise, it is stated on behalf of the respondents that the construction of the property is almost complete. In the result, the appeal fails and is dismissed with no order as to costs. JUDGE RMP