1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.813 OF 2007 WITH CIVIL APPLICATION NO. 1135 OF 2007 Nilesh Hiralal Pardeshi : Appellant versus Hiraman Murlidhar Kadam & ors. : Respondents. Shri. G S Godbole for the Appellant. Shri Shriram S Kulkarni for the Respondent Nos.1 to 4. CORAM : R.M.SAVANT, J. DATED : MARCH 30, 2009 P.C. 1. This Appeal takes exception to the order dated 12th September 2007 passed by the learned Joint Civil Judge, Senior Division, Nashik by which order the Application Exhibit-5 filed by the Appellant/Plaintiff for temporary injunction came to be rejected. 2. The Appellant/Plaintiff filed Special Civil Suit No.17 of 2007 for specific performance of the agreement for sale dated 12.8.2005 which was registered on 16.8.2005. It is the case of the 2 Appellant/Plaintiff that the Respondents, who are the original Defendants, are the owners of agricultural land bearing Survey No.220/1 admeasuring 2.21 Ares situated at Tryambakeshwar Taluka and District Nashik. The said land was mortgaged by them with the Nashik Merchants Co-operative Bank Limited, Nashik since they were unable to repay the loan, the Respondents were desirous of selling the said land. It is the case of the Appellant that he offered to purchase the suit land for an amount of Rs.10/- lakhs. It is further the case of the Appellant that it was agreed that the Appellant would purchase the said land and an agreement for sale would be executed and registered and, that the Respondents/Defendants would hand over the possession of the land to the Appellant at the time of execution of the agreement for sale and that the Appellant should pay the amount of Rs.4/- lakhs directly to the Nashik Merchants Co- operative Bank Limited against the liability of the Respondents. Accordingly an Agreement for Sale dated 12/8/2005 was executed and the Appellant deposited the amount of Rs.4/- lakhs with the Nashik Merchants Co-operative Bank Limited by Cheque No.263918 being part payment of the agreed consideration. The balance 3 consideration of Rs.6/- lakhs was agreed to be paid on or before 11.7.2006 and towards the said payment, the Appellant issued 4 post- dated cheques all dated 11.7.2006 drawn on HDFC Bank. By clause 6 of the said agreement for sale, it was agreed that the physical possession of the said land has been handed over to the Appellant by way of part performance of the contract. 3. It is further the case of the Appellant that the Respondents personally executed the agreement for sale by remaining present before the Joint Sub Registrar, Class II, Nashik-4 and the agreement for sale was registered at Sr.No.5120/2005. It is the case of the Appellant that since the Respondents were avoiding to execute the sale deed, the Appellant issued a notice dated 12.6.2006 calling upon the Respondents to execute the sale deed. Some of the Respondents accepted the said notice but did not reply, while some of the notices were returned back unclaimed despite the intimation by the postal authorities. The Appellant therefore filed the said Special Civil Suit No.17 of 2007 in the Court of the learned Civil Judge, Senior Division, Nashik for specific performance of the agreement for sale dated 4 12.8.2005. Initially an order of temporary exparte injunction was granted in favour of the Appellant. 4. In the said suit, the Appellant filed an application for temporary injunction. The Respondents filed their reply to the said application for temporary injunction and contended that they had not received the said post-dated cheques. It was further contended on behalf of the Respondents that they wanted to sell the land because of to repay the loan and that they wanted to purchase some other agricultural land from the balance amount, but on account of non- receipt of the balance consideration, their plans for purchasing other agricultural land were frustrated. The said application for temporary injunction Exhibit-5 was considered by trial Court and by the impugned order dated 12/9/2007 the said application came to be rejected. 5. The trial Court took into consideration the fact that all the cheques issued by the Appellant for balance consideration are post dated cheques i.e dated 11/7/2006. No evidence has come forth 5 before the trial Court as to whether the said cheques were received by the Respondents or not as also whether they were encashed or not. Hence only an amount of Rs.4 lakhs was paid by the Appellant directly to the said Bank. Therefore the plan of the Defendants to buy agricultural land out of the balance consideration was frustrated. 6. In so far as the possession is concerned, apart from the recitals in the agreement for sale, the Appellant except for relying upon certain photographs wherein the Appellant is shown standing in the suit land, no other material was placed on record. The trial Court was of the view that the best evidence in that respect would have been an entry in the 7x12 extract. The 7x12 extract produced by the Appellant shows that the names of the Respondents are appearing in the rights column in the revenue records and they are shown to be in occupation and cultivating the said land. The trial Court was of the view that if any person other than owner cultivates agricultural land or occupies the same, then he is bound to file Form-14 in the office of the Talathi which the Appellant has not done. The trial Court also observed that the Appellant had not produced affidavits of the 6 neighbouring occupiers so as to support his case that he had been cultivating the suit land. The trial Court held that it therefore cannot be said that on 16.8.2005 the possession of the suit land was handed over to the Applicant/Plaintiff i.e the Appellant herein. The trial Court was, therefore, of the view that the Appellant was not entitled to the discretionary relief of injunction. 7. It would be pertinent to note that the notice was issued by the Appellant to the Respondents dated 12.6.2005 by which notice he has asked the Respondents to execute the sale deed. It would also be pertinent to note that all the post dated cheques are dated 11.7.2006 and, therefore, the Appellant had asked the Respondents to execute the sale deed even before the said cheques were realized. The said statement was therefore contradictory to the Appellant's own case in the Plaint. The trial Court also took into consideration the fact that the Respondents are agriculturists whereas there was no evidence on record to show that the Appellant/Plaintiff is an agriculturist. The trial Court therefore observed that the case of the Respondents/Defendants that out of the balance consideration they 7 wanted to purchase an agricultural land sounds acceptable. The trial Court was therefore of the view that the balance of convenience was also in favour of the Respondents. 8. It is sought to be contended on behalf of the Appellant that in view of the recitals in the said agreement for sale dated 12.8.2005, the Appellant would have to be held to be in possession of the suit land which was handed over to him on 16.6.2005. The finding of the trial Court in that regard was therefore perverse and unwarranted and not supported by any material on record. 9. As indicated above, except the said recitals, the Appellant/Plaintiff has not produced an iota of evidence to show that he is in possession of the suit land and was cultivating the same. 10. On the other hand, the revenue record indicates that the Respondents were cultivating the suit land. The Appellant had also 8 not submitted Form No.14 to the office of the Talathi to indicate that he was cultivating the suit land. Considering the said material, in my view, the finding of the trial Court that the Appellant/Plaintiff was not in possession of the suit land cannot be faulted with. 11. Having considered the reasons cited by the trial Court, in my view, no case for interference is made out. The above Appeal is accordingly dismissed. The ad-interim order which is in operation from 26th October 2007 to continue for a period of eight weeks from date. 12. In view of the dismissal of the above Appeal from Order, the Civil Application No.1135 of 2007 does not survive and the same is accordingly disposed of. [R.M.SAVANT, J]