1 caf1164 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.1164 OF 2010 IN FIRST APPEAL NO.1149 OF 2009 Baban Kishan Shinde & Ors. ...Applicants vs. Mohit Harishkumar Arora & Ors. ...Respondents Mr.S.N.Chandrachud for the applicants Ms Rajalakshmy Mohandas i/b ALMT Legal for the respondent nos.1,2,3,4 and 5. CORAM : A.S.OKA,J. DATE : JULY 13, 2011 P.C.: 1 Heard the learned counsel for the applicants and the learned counsel for the respondents. The applicants are the original plaintiffs and the respondents are the original defendants. The applicants executed an agreement for sale dated 11 th December 1995 in favour of the 4 th and 5 th respondents and also executed power of attorney in their favour. On the basis of the said power of attorney, the 4 th and 5 th respondents executed sale deed dated 20 th August 2003 in favour of the 1 st to 3 rd respondents. 2 A suit was filed by the applicants contending that by issuing notices dated 18 th and 20 th November 2000, the agreement executed in favour of the 4 th and 5 th respondents has been terminated. Therefore, various reliefs were prayed for in the suit such as setting aside the sale deed dated 20 th August 2003, declaration that sale deed is null and void and injunction restraining the respondent from interfering with possession of the applicant over the suit property. By the impugned Judgment and decree, the Trial Court dismissed the suit. 2 caf1164 The Trial Court recorded a finding that the first applicant being Karta of the joint Hindu family has received consideration of Rs.30,00,000/- and waived notice dated 20th November 2000 of termination of agreement. 3 The appeal has been admitted and by the present application, the applicants are claiming injunction restraining the respondent from creating third party rights and from disturbing the actual physical possession of the applicants over the suit property. It must be noted here that during the pendency of this Appeal, the Division Bench of this Court has framed an issue on the question, whether the applicants continued to be in possession of the suit property? as stated in paragraph 6 of the plaint . The parties were permitted to adduce evidence. By Judgment and Order dated 15 th February 2011 the Trial Court recorded a finding that the applicants have failed to prove that they continued to be in possession. Now, there is an affidavit filed on record objecting the to said finding. 4 The learned counsel for the applicants submitted that the applicants examined various witnesses to prove their possession. He submitted that the 1st to 3rd respondents who are claiming to be the purchasers of the suit premises did not step into the witness box. He submitted that the revenue record supports the applicants. He further submitted that the applicants have deposited a sum of Rs.30,00,000/- in this Court. His submission is that as the applicants are in possession of the suit premises, the possession deserves to be protected. 5 I have considered the submissions. It is not in 3 caf1164 dispute that during the pendency of the suit, an application for temporary injunction made by the applicants was dismissed. Though an appeal was preferred by the applicants, during the pendency of the Appeal suit was decided. Thus, from the institution of the suit till the disposal of the suit, there was never any injunction granted in favour of the applicants for protecting their alleged possession. The finding of the Trial Court is that the applicant No.1 being Karta of joint Hindu family has received entire consideration of Rs.30,00,000/-. The said finding prima appears to be correct as during the pendency of the present Appeal, the applicants themselves have deposited a sum of Rs.30,00,000/-. A sum of Rs. 30,00,000/- was a total consideration under the agreement for sale payable by the applicants in favour of the 4th to 5 th respondents. 6 Now, there is a finding recorded during the pendency of the Appeal on appreciation of evidence that the applicants have failed to prove that they are in possession. 7 Thus, prima facie, it appears from the record that the applicant no.1 has accepted the full consideration of Rs.30,00,000/- from the 4th and 5th respondents. During the pendency of the suit and till today, the possession of the applicants was never protected under any interim order. Merits of finding recorded under order dated 15 th February 2011 will have to be considered at the time of final hearing of the Appeal. 8 The Division Bench while passing the order dated 14 th June 2010 has recorded that there was an interim arrangement ordered by the Trial Court restraining the respondents from creating third party interests in 4 caf1164 respect of the suit property. The said ad-interim relief deserves to be continued till the final disposal of the Appeal. 9 Accordingly, I pass the following order : i) Till the final disposal of the Appeal, the respondents are restrained from creating third party rights in respect of the suit property. ii)Rest of the prayers are rejected. iii)Civil Application is disposed of on above terms. JUDGE