1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. APPEAL AGAINST ORDER NO.7/2009 [Chandrabhan Kanu Mangam ..vs.. Sukarsa Amarsingh Iwnati ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : S.R. DONGAONKAR J. DATED : JULY 23, 2009. ORAL ORDER 1] Heard Shri Naik, advocate for the appellant /original defendant and Shri Meghe, advocate for the respondent/original plaintiff. 2] Notice for final disposal was issued considering the circumstances of the case. 3] Heard finally with the consent of the parties. 4] The appellant is the defendant in Special Civil Suit No. 469/2007 pending before the court of Civil Judge, Senior Division, Nagpur filed by the respondent. The suit is for specific performance of the contract of sale between the parties. In the suit; temporary injunction was sought claiming that the 2 defendant/ present appellant is trying to dispose of the property though the plaintiff was put in possession of the suit property in pursuance of the agreement of sale. It was also a case of respondent/plaintiff that the sale consideration. It was also case of the respondent /plaintiff that the sale consideration of suit property was Rs.1,41,000/- out of which Rs.1,32,201 was in fact paid to the appellant. 5] Learned trial Judge, after hearing the parties passed impugned order on 9.9.2008 holding that the plaintiff is in possession of the property and substantial amount was paid to the defendant. The defendant and plaintiff are of the same tribe and defendant had put the plaintiff into possession. He also found that defendant had intended to sell the property to the third person and therefore he passed impugned order: “Order 1]Application Exh.5 is allowed. 2] Defendant, his servants, agents, or anybody acting on his behalf are hereby restrained from creating third party interest in the suit property and also directed not to disturb the peaceful possession of the plaintiff till hearing, and final disposal of the suit.” 6] Learned counsel for the appellant / defendant has submitted that the dependent being tribal, can not transfer the said suit property to the plaintiff; in fact, there was no 3 agreement of sale at all. According to him, he being an illiterate person and taking disadvantage of his ignorance, his thumb print was taken on some papers and one of them is the alleged agreement. He further contended that the plaintiff had sought a permission to purchase the suit property, but same was refused. The said order is now produced before the court which is dated 5.4.2007, passed by the Additional Collector. According to him therefore, the learned trial Judge should not have passed the impugned order. 7] As against this, learned counsel for the respondent submitted that the order impugned is correct. Learned counsel for the respondent submitted, as the document now produced was not appearing before the court, he can not make submission on that. He contended that plaintiff has already received possession of the suit property and therefore, impugned order is passed on giving consideration to all aspects of the case. 8] I am of the opinion that the matter needs to be again considered by the learned trial Judge, in detail after hearing the parties. Said document is coming for first time. Same also can be considered by the trial court after it is filed before the trial court. Observation of the trial court that both the parties belong to same tribe also needs to be considered again, considering the circumstances of the case, after hearing the parties. 4 9] Hence the matter needs to be remanded to the trial court for consideration afresh after hearing the parties. Hence without expressing anything on merits, impugned order is hereby set aside. Matter is remanded back to the trial Court for fresh consideration according to law after hearing both the parties, which he shall do within a period of two months from today. 10] It is made clear that till then parties shall maintain status- quo as on today and the defendant shall not create any third party interest except with the prior permission from the Court. 11] Appeal stands disposed of, in above terms. No order as to costs. JUDGE SMP