2707wp5759.10.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. WRIT PETITION NO.5759 OF 2010 Shri Kisan s/o Maroti Wadhai VERSUS Shri Nlkanth s/o Sudamji Mandekar and others ................................................................ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................ Shri N.B.Bargat, Counsel for the Petitioner. Shri Amol Mardikdar, Counsel for the Respondents. CORAM : R. K.DESHPANDE, J. DATE : 27. JULY, 2011. On the basis of the Agreement to Sale dated 29.2.1988, the petitioner who is the original plaintiff, has filed the Regular Civil Suit No.162 of 2008 for specific performance of contract. The defendant nos.7 and 8 have filed the Regular Civil Suit No.37 of 2009 for permanent injunction, restraining the petitioner from disturbing their possession over the suit field, which they alleged to have purchased by registered sale deed .....2/- 2707wp5759.10.odt 2 dated 31.7.2008. In both the suits, the applications for grant of temporary injunction, were filed, restraining the defendants from disturbing the possession of the plaintiff. The Application Exh.5 filed in Regular Civil Suit No.37 of 2009, by the respondent nos.7 and 8, has been allowed, restraining the present petitioner from disturbing their possession over the suit property. The Application Exh.5, filed in Regular Civil Suit No.162 of 2008, filed by the petitioner, restraining the defendants from interfering with his possession, has been dismissed. The separate orders were passed by the Trial Court on 30.9.2009. The petitioner preferred two appeals, (i)Misc.Civil Appeal No.31 of 2009 and (ii)Misc.Civil Appeal No.32 of 2009, challenging the aforesaid order passed by .....3/- 2707wp5759.10.odt 3 the Trial Court. Both these appeals have been dismissed by the learned District Judge-1, Yavatmal, by his order dated 21.9.2010. Hence, the plaintiff in Regular Civil Suit No.162 of 2008, is before this Court. Prima-facie, undisputed factual position is that the agreement, which is the subject matter of Regular Civil Suit No.162 of 2008 was executed on 29.2.1988 for total consideration of Rs.11,000/-, out of which the earnest money alleged to have been paid of Rs.1,000/-. The notice for specific performance of contract was issued by the petitioner on 10.4.1990 and the suit was filed on 10.11.2008. Prior to filing of the suit, the respondent no.1 herein, has executed the sale deed dated 11.7.2008 in favour of the respondent nos.7 and 8, pursuant to which the entries were taken in the revenue record and, therefore, the suit .....4/- 2707wp5759.10.odt 4 was filed on 10.11.2008. The Trial Court has recorded the finding that the agreement dated 29.2.1988 is silent about the possession of the property and there is some material over writing in the agreement in respect of the name of the petitioner/plaintiff. The genuineness of the agreement has been disputed and it is required to be gone into after the trial. It has further recorded the finding that there is nothing on record to conclusively hold that the petitioner/plaintiff is in possession of the suit property and the balance of convenience, therefore, does not lie in favour of the petitioner/plaintiff. It has been held that the registered sale deed has been executed in favour of the respondent nos.7 and 8 and they are putting possession of the property, hence, the injunction is refused, as there is no question of causing .....5/- 2707wp5759.10.odt 5 an irreparable loss. The Appellate Court has concurred the finding recorded by the Trial Court, that there is nothing to indicate, that the possession of the suit land was given to the petitioner/plaintiff, on the date of execution of agreement of sale. It has further recorded the finding, that not only the original owner of the suit land but the brother of the petitioner/plaintiff has also dislodged his claim in respect of the possession over the suit land. The Appellate Court has taken into consideration the 7/12 Extract in the name of the petitioner/plaintiff and his brother appearing in the cultivation column in respect of Gat No.52 for the year 2007-2008 and it has been held, that merely on the basis of such entries, it cannot be presumed, that the petitioner was in possession of the suit land from the .....6/- 2707wp5759.10.odt 6 original owner Shri Nlkanth s/o Sudamji Mandekar. It has also been held that prima- facie the suit is barred by limitation. Shri N.B.Bargat, the learned Counsel appearing for the petitioner, has relied upon the entries in the revenue record for the years 1988 to 2008 indicating the cultivating the possession of the petitioner/plaintiff over the suit field. He has also pointed out certain portion from written statement of the respondent nos.2 to 6 to point out, that they have also admitted the possession of the petitioner/plaintiff, over the suit field till 2008. He has also relied upon several decisions of the Apex Court on the proposition, that the plaintiff is bound to be settled the possession of the property, his possession needs to be protected. Prima-facie, the sale deed has been executed by the respondent no.1 in .....7/- 2707wp5759.10.odt 7 favour of the respondent nos.7 and 8, which is registered on 11.7.2008 and it shows, that the possession of the suit property has been handed over to the respondent nos. 7 and 8. The Courts below have considered the evidence placed on record by the petitioner/plaintiff to hold that the possession of the petitioner/plaintiff over the suit land, cannot be said to be on the strength of the Agreement to Sale dated 29.2.1988. From the portion of written statement pointed out by Shri N.B.bargat, the learned Counsel appearing for the petitioner/plaintiff, it seems that the brother of the petitioner/plaintiff was also in possession of the suit property. The brother has also dislodged the claim of the petitioner/plaintiff and that is the finding recorded by the Courts below. Thus, the entire material placed on record by the petitioner/plaintiff has been taken into .....8/- 2707wp5759.10.odt 8 consideration by the authorities below. At any rate, the view taken by the Courts below, is a possible view and it does not call for any interference. The writ petition is, therefore, dismissed. Need less to say that any observations made by this Court below on prima-facie assessment of the case or by this Court, shall not come in the way of the parties at the time of final adjudication of the matter. JUDGE BrWankhede ...../-