1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8716 OF 2009 Hanumant Devraj Bhange .. Petitioner V/s Nandaz Bapurao Kotmire .. Respondent Mr. Rahul More i/b Mr. U.P. Warunjikar for the petitioner. Mr. S.V. Sadavarte for the respondent. CORAM : D.G. KARNIK, J. DATE : 16TH JUNE 2010 P.C. : 1. Rule. By consent, Rule is made returnable forthwith. Mr. Sadavarte waives service for the respondents. 2. Heard learned counsel for the parties. 3. The respondent no.1 is an owner of northern portion of gat no.17/2 to the extent of 61 Ares out of the total area of 1 hectares 72 ares. By an agreement of sale dated 10th July 2007, the respondent no.1 agreed to sell 20 Ares out of 61 Ares of the land owned by him to the petitioner for a sum of Rs.75,000/-. As the respondent no.1 did not execute the sale 2 deed as per the agreement, the petitioner filed a suit for specific performance and claimed injunction restraining the respondent no.1 from alienating the suit land as also from disturbing the possession of the petitioner over the suit land. He also prayed for an interim injunction during the pendency of the suit. The injunctions as prayed, were granted by the Trial Court. On appeal by the respondent, the appellate court confirmed the injunction restraining the respondent from alienating the suit land but vacated the injunction granted by the Trial Court restraining the respondent from disturbing the possession of the petitioner. Being aggrieved by the order vacating the injunction, the petitioner has approached this Court. 4. The petitioner has filed on record a photocopy of the agreement of sale dated 10th July 2007. The agreement of sale was for Rs.75,000/- out of which a sum of Rs.60,000/- was paid by the petitioner to the respondent at or before the execution of the agreement. The balance of Rs.15,000/- was to be paid at the time of execution and registration of the sale deed which was to be executed before 18th September 2008. Page 6 of the agreement of sale specifically recites that the respondent had handed over the possession of the suit land to 3 the petitioner in part performance of the agreement. 5. Learned counsel for the respondent submitted that though the agreement specifically recites handing over possession by the respondent, actual possession was not given and the land continued to remain in possession of the respondent. He submitted that sugarcane was grown by the respondent and was supplied by him to the sugar factories which prima facie discloses that the respondent was in possession of the land. Admittedly, the petitioner owned 61 Ares of land and he had agreed to sell only 20 Ares. Remaining 41 Ares of land remained in his possession. The petitioner continued to cultivate sugarcane in the said 41 Ares of land. There is nothing on record to show that the sugarcane supplied by the respondent to the sugar factories was not out of this 41 Ares of land in his possession but was from 20 Ares of land covered by the agreement of sale. Counsel for the respondent submitted that quantity of sugarcane supplied would show that the sugarcane was from the entire land. Yield from sugarcane depends on several circumstances and in the absence of clear material regarding tonnage of the sugarcane which can be produced from 41 Ares of land, it cannot be said that the respondent was in 4 possession of the entire 61 Ares of land including the suit land. 6. There was no other material to show that the respondent was in possession of the suit land. As against that there was a credible material of possession was produced by the petitioner. The agreement of sale clearly recited the possession being handed over. The agreement is registered and the signatures on the agreement are not disputed. It may also be noted that nearly 80% of the total consideration was paid by the petitioner at the time of agreement itself. There is nothing improbable of the seller handing over possession of the land to the purchaser on receiving 80% of the consideration. The lower appellate court has misdirected itself in coming to the conclusion that the petitioner was not in possession of the land on the basis of tonnage of the sugarcane supplied. The relevant material on record and especially the admission of the respondent contained in the agreement of sale itself of handing over of possession ought to have been given due weightage by the lower appellate court. 7. For these reasons, Rule is made absolute. The 5 impugned order is set aside and the order passed by the Trial Judge is restored. (D.G. KARNIK, J.)