IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. APPEAL FROM ORDER NO.116 OF 2010 WITH CIVIL APPLICATION NO.12436 OF 2010 Sanjay Kathalu Kale and anr. .. APPELLANTS. VERSUS Smt. Basamma wo Basaiya Hiremath and others. .. RESPONDENTS. ... Shri R.M. Deshmukh, Advocate for Appellants. ... CORAM : S.S. SHINDE, J. DATE: 30th August, 2010. PER COURT: 1. This appeal is filed challenging the order below Exh.5 in Special Civil Suit No.15 of 2010 passed by the Joint C.J.S.D., Jalna on 21st July, 2010. The operative part of the said order reads thus: "ORDER (i) Application Exh.5 is hereby partly allowed. (ii) The non-applicant/defendant no.1 is hereby restrained from alienating the suit property in any way, mode or manner till disposal of suit. (iii) The application of the applicants/plaintiffs to restrain the non-applicant/defendant no.1 from disturbing the possession over the suit field is hereby rejected. (iv) Cost in cause." 2. The learned Counsel for the appellants submitted that the agreement to sell between the appellants and respondent No.1 was executed on 11th September, 2009 before the Notary on Stamp Paper of Rs.200/-. Consideration amount of Rs.2,50,000/- was passed on to the respondents. It is further submitted that on the same day, possession of the suit land has been handed over to the appellants. The learned Counsel further invited my attention to the pleadings in the appeal memo to show the pleadings in respect of possession and also paragraph 9 of the civil application, which is filed in the appeal from order. According to the learned Counsel for the appellants, the appellants were put in possession on 8th January, 2010. The Circle Officer has prepared necessary panchanama which is supported by two panchas. He further submitted that there are witnesses, who contend that the plaintiffs are cultivating the suit land. He invited my attention to the affidavits filed by one Mr. Shaikh Latif Shaikh Lal and Mr. Shaikh Chand Shaikh Isaq. In their affidavits, both of them have stated that the appellants are in possession and they are cultivating the suit land. The learned Counsel further invited my attention to the pleadings in the A.O., annexures thereto and the impugned judgment and order passed by the Court below and submitted that since sufficient evidence was placed on record by the appellants to show their possession on the suit land, the application filed by the appellants for injunction should have been allowed in toto. 3. I have heard learned Counsel appearing for the appellants at length, perused the appeal memo and annexures thereto and the impugned judgment and order passed by the Court below. The learned Judge framed four points for his consideration / determination. In paragraph 6 of the impugned judgment, the learned trial Judge has adverted to the alleged agreement to sell and the contentions of the appellants and observed, thus: "There is no recital as to delivery of possession in the agreement. Thus, the said agreement of sale dated 11/9/2009 is simply an agreement of sale without delivery of possession and therefore, it is neither compulsorily registrable nor any stamp duty is required to be paid thereon. In this view of the matter, the contentions of the counsel for defendant no.1 cannot be accepted that the said agreement is neither registered nor any stamp duty is paid thereon." 4. In this view of the matter, the contention of the learned Counsel that they are in possession is not accepted by the trial Court. In para 9, the learned Judge has observed that delivery of possession, according to the said agreement was to take place after execution of the sale deed. No prima facie proof is placed on record by the plaintiffs showing as to how they were put in possession by the defendant No.1 without accepting any substantial amount of consideration. 5. Though the learned Counsel for the appellants streneously contended that the panchanama which was prepared by the Circle Officer was supported by two panch witnesses, the fact remains that respondent No.1, who is original defendant No.2 was not present at the time of said panchanama. The relief of injunction is discretionary relief and the Judge has to take into consideration the prima facie case while exercising discretionary jurisdiction. 6. Upon going through the reasoning given by the trial Court, I do not find any error or perversity in the findings. Hence, no case is made out for entertaining this appeal. Therefore, the appeal from order is rejected. Civil Application does not survive and the same is disposed of. [ S.S. SHINDE, J ] ... PLK/*