1 AO-314-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 314 OF 2011 WITH CIVIL APPLICATION NO. 453 OF 2011 Vishwanath Shankar Mungli & Anr. ... Appellants (Orig. defendants) vs. Lalasaheb Balwant Mahadik ...Respondent (Orig. plaintiff) Mr. Rahul Kulkarni, Advocate for the appellants. Mr. V.B.Rajure, Advocate, for the respondent CORAM: J.H.BHATIA,J. DATE : 2nd August, 2011. P.C. 1. Heard the learned Counsel for the parties. 2. The appeal is preferred by the original defendant against the order of temporary inunction passed below Exhibit 5 in RCS No.3 of 2010 by the learned Civil Judge, Senior Division, Jaysingpur, whereby the defendants/appellants were restrained from disturbing the plaintiff's possession over the suit property till final disposal of the suit. They were also directed to supply electricity to the suit property in possession of the plaintiff. 2 AO-314-11.sxw 3. Admittedly, the land admeasuring about 18 Ares belongs to the defendants. The plaintiff/respondent is in occupation of the premises constructed on the area of 1.79 Ares out of that land. According to the plaintiff, under an oral agreement for sale, the defendants had agreed to sell the piece of land admeasuring 1.79 Ares with a structure to be constructed on the same, for consideration of Rs. 4,50,000/-. He claims that the defendants received amount of Rs.1,40,000/- which was used for construction on the said land and they have also received further amount of Rs.2.77,000/- and the plaintiff was put in possession of the same. He filed the suit for specific performance of the contract and sought the temporary injunction. 4. The defendants contested the application denying the alleged contract. According to them, the plaintiff was running coaching classes in a different premises which were required to be vacated because the landlord required the same for his personal use. The plaintiff and defendants were good friends. There was a structure on the piece of land. The defendants put a shed on the same and allowed the plaintiff to use the said premises for running the coaching classes. They denied that there was any agreement to sell or that they had received any amount either for construction or otherwise. 3 AO-314-11.sxw 5. On perusal of the record and the impugned order, it appears that while the defendants produced documentary evidence to show that they had obtained loan of Rs.1,40,000/- from Kolhapur Maratha Co-op. Bank which later on merged with Saraswat Co-op. Bank Ltd. The plaintiff could not produce any document either about the agreement or about any payments allegedly made by him to the defendant. In view of this, prima facie, there is no material to support the claim of the plaintiff that he was put in possession of the property under the agreement for sale and that he had made some payment towards consideration. However, it is an admitted fact that the plaintiff is in possession. The dispute is also as to whether he is in possession as a tenant or a licensee of the defendant. It is not necessary to enter into that controversy in this appeal. In my opinion, in view of the above circumstances, restraining the defendants from disturbing possession of the plaintiff during pendency of the suit may prevent the defendants from seeking appropriate remedy for taking possession even by filing a suit. However, as the plaintiff is in established possession, irrespective of what right he has, the order passed by the trial Court needs to be modified. 6. Therefore, clause 2 of the impugned order stands modified thus :- 4 AO-314-11.sxw The defendants are temporarily restrained from disturbing the plaintiff's possession over the suit property pending the suit, otherwise than by following due process of law. The Appeal is allowed accordingly. 7. As the Appeal itself is finally disposed of, the C.A. does not survive and disposed of accordingly. (J.H.BHATIA,J.)