Prashant Shivcharan Kathoke vs Nikhil S/O. Lalit Sharma
2023 Latest Caselaw 11682 Bom

2023:BHC-NAG:16467



                 WP-3412.23-Judgment                                                     1/21


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     NAGPUR BENCH AT NAGPUR

                                    WRIT PETITION NO.3412/2023

                 PETITIONER          Prashant Shivcharan Kathoke
                                     aged about 43 years, Occ. Business, resident of
                                     Old Kamptee Road, Vaishnodevi Nagar, Plot
                                     No.49, Kalamna, Nagpur.



                                                ...VERSUS...

                     RESPONDENT Nikhil s/o Lalit Sharma, aged 30 years,
                                Occ. Busines, R/o Shantinagar, Near Water
                                Tank,
                                Lal Nagar, Nagpur 440002.

                 Mrs. P.V. Ganediwala with Mr. Vinay Sharma, Advocates for petitioner.
                 Mr. S.S. Sitani, Advocate for respondent.


                                   CORAM : AVINASH G. GHAROTE, J.
                                   Date of reserving the judgment   : 02/11/2023
                                   Date of pronouncing the judgment : 10/11/2023

                 JUDGMENT

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally

with the consent of the learned counsel for the rival parties.

3. The present petition is filed by the original defendant

challenging the order below Exh.-5, passed by the learned Trial

KHUNTE WP-3412.23-Judgment 2/21

Court dated 15/04/2023 (Page-57), whereby the same has been

granted and so also the judgment in appeal dated 17/05/2023

(page 45) dismissing the appeal.

4. The following position is not in dispute.

(a) That Plot No.135 was originally owned by the Burde Family, who by an agreement of sale dated 09/07/2021 (page-89) agreed to sell the same to the respondent (Nikhil Sharma) for valuable consideration. The said agreement indicated possession being delivered to the respondent.

(b) In pursuance to the said agreement, a sale deed was executed and registered by the members of the Burde Family on 22/09/2021 in favour of the respondent (page-96), which mentions about possession already being delivered to the respondent on the date of the agreement of sale.

(c) On 24/09/2021, the respondent executed a power of attorney in respect of Plot No.135 in favour of the petitioner, which was registered on 24/09/2021 (page-147).

(d) It is contended that on the basis of this power of attorney dated 24/09/2021, the petitioner registered a sale deed, which was executed by the respondent in his favour (page-

160).

(e) The respondent on 09/11/2022, filed Special Civil Suit No.1222 of 2022, claiming a declaration that the sale deed

KHUNTE WP-3412.23-Judgment 3/21

dated 04/10/2022 was null and void and not binding upon the respondent.

(f) The learned Trial Court by the order dated 15/04/2023 (page-57) allowed the application below Exhibit-5, holding that the respondent was in possession of the plot No.135 and thereby restraining the petitioner/ defendant from disturbing his possession and from creating third party interest.

(g) The petitioner/defendant filed an appeal challenging the order below Exhibit-5, which came to be dismissed by the judgment dated 17/05/2023 (page-45).

5. It is contended by the learned counsel for the

petitioner that both the order below Exhibit-5 and the judgment of

the learned Appellate Court suffer from perversity, inasmuch as

they do not take into consideration the fact that the power of

attorney dated 24/09/2021 executed by the respondent in favour

of the petitioner was not denied, which would indicate that the

respondent himself had executed the sale deed in favour of the

petitioner of Plot No.135, which was then merely registered by the

petitioner in his own favour. It is also contended that the Courts

below did not consider the position that it was the petitioner, who

was in possession of Plot No.135 on the date of the filing of the

suit, in pursuance to the sale deed dated 04/10/2022. It is also

KHUNTE WP-3412.23-Judgment 4/21

contended that the order below Exhibit-5 does not render any

reasons for the finding regarding possession and therefore, is

perverse. It is also contended that the electric meter in Plot

No.135 is in the name of the petitioner, who has also appointed his

security guard and has also filed complaints to the Police

Authorities (page-305), and the notice under section 149 of Code

of Criminal Procedure issued to the respondent, regarding the

disturbance of possession of the petitioner by the respondent to

the appropriate Authorities, all of which indicate possession of the

petitioner. It is also contended that the entire consideration under

the sale deed dated 22/09/2021, in favour of the respondent, was

in fact, paid by the petitioner for which reliance is placed upon the

entries in statement of account of the respondent (page-220).

Though fraud has been pleaded in para-11 of the plaint regarding

the execution of the sale deed dated 04/10/2022, it is lacking in

material particulars. The plea of benami transaction, on the basis

of which the sale deed dated 22/09/2021, is being doubted, is

unsustainable in law, on account of the fact that there is no action

taken under the provisions of the said Act as of date. The

respondent was the employee of the petitioner on the monthly

salary of Rs.5,000/- and therefore was not possessed of any

KHUNTE WP-3412.23-Judgment 5/21

means, and in fact is misusing the trust reposed in him. There is

absence of prima facie case and the impugned order and judgment

are based on irrelevant considerations. The learned counsel relied

upon Gorakh Mahadev Survase and others v. Narayan Balu

Dhombe since deceased thr.his Lrs.and others, reported in 2012

(2) Mh.L.J. 215, which holds that for the purpose of grant of

temporary injunction, parties must substantiate their case of

possession by corroborative material and Thimmaiah v. Shabira

and others, reported in (2008) 4 SCC 182 to contend that the

Court has to record findings regarding possession.

6. Mr. Sitani, learned counsel for the respondent while

supporting the order below Exhibit-5 and the impugned judgment,

contends that the payment, under the sale deed dated

22/09/2021 has been made by the respondent. It is contended

that the entries in the statement of account of the respondent

(page-220), even if presumed to be correct, would not deter from

the fact that the payment of consideration under the aforesaid sale

deed has flown to the members of the Burde Family from the

respondent. Even if it is presumed that there are some entries

prior to the transactions in favour of the members of the Burde

KHUNTE WP-3412.23-Judgment 6/21

Family, which indicate deposit of the amounts in the account of the

respondent, that would not deter from the legality and validity of

the sale deed dated 22/09/2021, which in fact transfers the title in

favour of the respondent and recognizes his possession from the

date of the agreement of the sale dated 09/07/2021 (page-89) by

the Burde Family in favour of the respondent. He, therefore,

contends that these documents would demonstrate that

throughout the consideration has been paid by the respondent on

his own, on account of which, title stands transferred in his name

along with the possession as indicated above and the Courts below

have rightly held that the respondent is the owner of the property

in possession. It is also pointed out that the pleadings of the

respondent in his written statement do not base the title upon the

sale deed dated 04/10/2022, but claim that the sale deed dated

22/09/2021 in favour of the respondent was a benami

transaction, the consideration for the same having been flown

from the petitioner, which is a plea, which has to be established in

evidence and the prima facie position as spelt out from the sale

deed dated 22/09/2021 of the consideration having been paid by

the respondent cannot be disbelieved at this stage. He also

submits that if the plea is to be accepted that the sale deed dated

KHUNTE WP-3412.23-Judgment 7/21

22/09/2021 was a benami transaction for which the consideration

was paid by the petitioner, there is no reason why the sale deed

dated 04/10/2022 should not indicate this position, rather on the

contrary, indicates that it is for consideration paid to the

respondent as mentioned therein. He, therefore, submits that the

sale deed dated 04/10/2022 is clearly a document of doubtful

character as rightly held by the learned Appellate Court and the

concurrent findings in this regard do not call for any disturbance.

The learned counsel for the respondent placed his reliance upon

Skyline Education Institute (Pvt.) Ltd. v. S.L.Vaswani , reported in

(2010) 2 SCC 142 regarding the powers of the Appellate Court of

interference in an order of injunction. He also placed his reliance

upon Life Style Green City Pvt.Ltd. and others v. Pyarelal (dead)

thr. Lrs.and others; Writ Petition No.1881 of 2023 decided on

24/03/2023 (para-8) to contend that the electricity bills cannot be

the sole criteria to hold possession of a party.

7. At this juncture, the learned counsel for the petitioner

seeks a short accommodation for placing additional judgments on

record, considering which list the matter on 30/10/2023.

KHUNTE
 WP-3412.23-Judgment                                                          8/21

8. Learned counsel for the petitioners has relied upon

the following decisions :

(1) Saketa Vaksana LLP and another Vs. Kaukutla Sarala and others (2020) 11 SCC 773

(2) Best Seller Retail (India) Private Limited Vs. Aditya Birla Nuvo Limited and others (2016) 6 SCC 792.

(3) Seema Arshad Zaheer and others Vs. Municipal Corporation of Greater Mumbai and others (2006) 5 SCC 282

(4) Bishundeo Narain and another Vs. Seogeni Rai and another (1951) SCC 447

(5) Grasim Industries Limited and another Vs. Agarwal Steel (2010) 1 SCC 83

(6) Lucknow Development Authority Vs. Mazhar Khan @ Pappu and others 2017 SCC OnLine SC 18

(7) Shanti Budhiya Vesta Patel and another Vs. Nirmala Jayprakash Tiwari and others (2010) 5 SCC 104

(8) Thimmaiah Vs. Shabira and others (2008) 4 SCC 182

(9) Gorakh Mahadev Survase and others Vs. Narayan Balu Dhombe since deceased through his L.Rs. and others 2012 (2) Mh.L.J. 215

9. The parameters of interference in a concurrent

finding of fact needs to be considered. They are spelt out in

Seema Arshad Zaheer (supra) in para 32 as under :-

"32. Where the lower court acts arbitrarily, capriciously or perversely in the exercise of its discretion, the appellate court will interfere. Exercise of discretion by granting a temporary injunction when there is "no material", or refusing to grant a temporary injunction by ignoring the relevant documents

KHUNTE WP-3412.23-Judgment 9/21

produced, are instances of action which are termed as arbitrary, capricious or perverse. When we refer to acting on "no material" (similar to "no evidence"), we refer not only to cases where there is total dearth of material, bur also to cases where there is no relevant material or where the material, taken as a whole, is not reasonably capable of supporting the exercise of discretion. In this case, there was "no material" to make out a prima facie case and therefore, the High Court in its appellate jurisdiction, was justified in interfering in the matter and vacating the temporary injunction granted by the trial court."

10. The execution and registration of the sale-deed dated

22/9/2021 by the members of the Burde family in favour of the

respondents is not disputed, though it is contended that the sale-

deed in fact is a Benami transaction on account of the

consideration of the same having been actually paid by the

petitioner, for which the statement of account of the respondents

(pg.225) is being relied upon, it is something which will have to

be decided on the merits of the matter and cannot form a basis for

deciding Ex.5, on account of the contentious contentions.

11. The finding rendered by the courts below of the

respondent being in possession, has therefore to be tested on the

aforesaid parameters. A perusal of the order of the learned Trial

Court dated 15/4/2023 (pg.65), would indicate that the

KHUNTE WP-3412.23-Judgment 10/21

discussion in this regard is in paras 11 & 12, which speaks as

follows :

"11. On perusal of entire pleadings and documents on record it appears that s per the contentions of plaintiff the registered sale deed has been executed in his favour. In pursuance of the same, the defence of the defendant has to be proved by leading evidence. In the meantime if the defendant deal with the property the very purpose of filing the present suit will be frustrated. There is also likelihood that there will be multiplicity of suit between the parties. Hence in order to protect the subject matter of the suit grant of temporary injunction is justified.

12. In view of the same, plaintiff has proved the prima facie case in his favour. It prima facie appears that after execution of sale deed for valuable consideration the possession is also with the plaintiff. Balance of convenience lies in favour of plaintiff. If the property is not protected plaintiff will suffer irreparable losses which cannot be compensated in terms of money. Hence, the defendant has to be restrained from creating third party interest in the suit property till the disposal of the suit. Hence, I answer issue no.1 to 3 in affirmative and pass the following order for issue no.4 :-

ORDER

1. Application is allowed.

2. Defendant or anybody claiming through defendant is hereby restrained by order of temporary

KHUNTE WP-3412.23-Judgment 11/21

injunction from interfering with the possession of plaintiff over the suit property and from creating any third party interest or creating any kind of encumbrance over the suit property till the decision of suit.

3. Cost on cause."

12. That is the only consideration by the learned Trial

Court for arriving at the finding that the respondent /plaintiff is in

possession. This in my considered opinion, cannot be said to be

enough. The learned Trial Court for the finding regarding

possession, specifically in light of the admission as to the

execution and registration of the power of attorney dated

22/9/2021 by the respondent /plaintiff in favour of the

petitioner/defendant, and more so the sale deed dated

4/10/2022, executed on its basis, which indicated delivery of

possession, ought to have given reasons in respect of the effect of

these documents, which is absent.

13. The Learned Appellate Court, in its impugned

judgment dated 17/5/2023, has considered the position in paras

24, 25, 26, 29 in the following words :

"24. In the case at hand, the sale deed dated 22.09.2021 as well as the power of attorney dated

KHUNTE WP-3412.23-Judgment 12/21

24.09.2021 prima facie show that on the date of the execution of the sale deed dated 22.09.2021, the respondent was put in possession of the suit property. As demonstrated supra, the execution of the sale deed dated 04.10.2022 is doubtful. The appellant has failed to prima facie establish that the title or possession of the suit property was transferred to him by the sale deed dated 04.10.2022. As such, no weight can be attached to the complaint which he alleged to have made tot he police against the respondent.

25. Indeed, the appellant has placed on record a copy of an electricity bill to establish his possession over the suit property, but as per the Government Resolution dated 18.10.2016 issued by the Industries, Energy and Labour Department, Government of Maharashtra, an electric bill cannot be used as proof to establish possession.

26. The appellant has placed on record photographs along with the list at Exh.13 to show that he is in possession of the suit property However, he has not placed on record any document to show that the shed which is shown in those photographs is on the suit property and that he constructed that shed with the permission of the competent authority. So, merely on the basis of those photographs, it cannot be deduced that the appellant is in possession of the suit property.

27. ....

28. .....

29. From the record, it is prima facie clear that the respondent is the owner in possession of the suit property. The respondent has thus made out a prima facie case in his favour. The balance of convenience

KHUNTE WP-3412.23-Judgment 13/21

also lies in his favour. Under these circumstances, if his possession over the suit property is not protected by a temporary injunction or if the appellant succeeds in creating a third-party interest in the suit property as apprehended by the respondent, he would suffer an irreparable loss. So, in order to maintain the status quo ante and avoid the multiplicity of the proceedings, it was necessary to injunct the appellant from creating a third-party interest in the suit property until the final decision of the suit. Consequently, I hold that the respondent was entitled to the relief of a temporary injunction against the appellant. Accordingly, I answer point No.1 in the affirmative."

14. The finding that the sale deed dt.4/10/2022, is

doubtful, is merely on the basis of a presumption that the since it

is contended by the petitioner/defendant that the consideration

for the sale deed dt. 22/9/2021, by the Burde Family in favour of

the respondent/plaintiff was paid by the petitioner/defendant,

and as the sale deed dt.4/10/22, in favour of the

petitioner/defendant show transfer of consideration, there is

inconsistency. It is well settled position of law, that it is open for

the defendant to take inconsistent pleas. The electricity bill,

photographs, complaints made by the petitioner/defendant have

been brushed aside to hold that the respondent/plaintiff is in

possession, ignoring the admission on part of the respondent

/defendant of having executed and registered the power of

KHUNTE WP-3412.23-Judgment 14/21

attorney dt.27/9/2021 in favour of the petitioner/defendant and

its effect.

15. As recorded in para 2 supra the respondent does not

dispute the execution of the power of attorney dated 24/9/2021

(pg.147). It is therefore necessary to construe the said power of

attorney as on the basis of this the petitioner claims to have got

the sale-deed dated 4/10/2022 (pg.159) in respect of plot no.135

executed in his favour and so also possession. A perusal of this

power of attorney (pg.147) execution of which is not disputed,

would indicate that it has been executed on 24/9/2021 by the

respondent in favour of the petitioner. The same is in relation to

plot no.135 admeasuring 263.37 sq. meters. The said power of

attorney refers to the earlier document of sale dated 22/9/2021

registered at serial no.4754 with Sub Registrar Nagpur-2 by the

original owners that is members of the Burde family in favour of

the respondent. The said power of attorney further narrates that

the purpose of its execution is to register a sale-deed either in

favour of a prospective purchaser or the power of attorney holder

in whose favour the power of attorney is being executed. The

relevant portion is quoted as under :

KHUNTE
 WP-3412.23-Judgment                                                                             15/21

"mijksDr prqflesP;k LFkkoj feGdrhps [kjsnhnkj ;kaP;k fdaok vkeeq[kR;kj /kkjd ;kaP;k LorkP;k i{kkr foØhi=] nq:Lrhi= fdaok foØhpk djkjukek@vkeeq[kR;kji= o brj vko";d nLrkost iaftc/n dj.;k dfjrk ek- nq ¸;e fuca/kd ukxiwj ;kaps le{k vkEgh O;ähxr fjR;k gktj jkgq "kdr ukgh Eg.kqu eh mijks ä o.kZukrhy LFkkoj feGdrh ckcr nLr fu'iknhr d:u fnysys vkgs Eg.kwu ekÖ;k rQsZ dcqyh tokc ns.;k dfjrk ek>s fo"oklq Jh iz"kkar f"kopj.k dkBksds ;kauk vkiys vkeeq[kR;kj /kkjd Eg.kqu vkt jksth fu;qä dfjr vkgs-

lngZq Lfkkoj feGdrhP;k lanHkkZr eh Lork lákfu"kh fu'iknhr dsysys nLrkost tls foØhi=] foØh pk djkjukek] nq:Lrhi= bR;knh nLrkost Jh iz"kkar f"kopj.k dkBksds gs laca/khr nq¸;e fuca/kd dk;kZy; lknj djrhy rlsp uksan.kh ph laiw.kZ dk;Zokgh ikj ikMrhy rlsp ekÖ;k orhus nq¸;e fuca/kd lkgsc ;kaps le{k dcqyh tokc nsrhy A Hkfo';kr gk vkeeq[kR;koji= pk nLrkost jí dj.;kph vko";drk HkklY;kl nksUgh i{kkaP;k mifLFkrhr gk vkeeq[kR;kji=kps ys[k jí dj.;kr ;sbZy-

rlsp ek>s vkeeq[kR;kj mijksä LFkkoj feGdrh laaca/khph ns[kjs[k djrhy rlsp vko";drk iMY;kl dfu'B U;k;ky; rs ofj'B U;k;ky; i;Zar nkok nk[ky djrhy A odhy fu;qä djrhy rlsp ofdyi=@"kiFki=@le>kSrki=koj ekÖ;k orhus vkiyh Lok{kjh djrhy-

dfjrk gs vkeeq[kR;kj eh ek>s Lolarks'kkus iq.kZ] fopkjkus] okpwu letwu dks.krsgh nckokr u ;srk [kkyhy lk{khnkjkle{k fygwu fnys rs lgh vlwu eyk o ek>s bLVsV okjlkukal ykxq o ca/kudkjd jkghy-"

16. This would clearly indicate that the power of attorney

dt.27/9/2021 does not confer any right or authority upon the

petitioner/defendant to execute the sale deed. Rather the only

power conferred is to present, admit and register, the sale deed

already executed by the respondent/plaintiff before the concerned

Sub-Registrar of Documents. Though the execution of the sale

KHUNTE WP-3412.23-Judgment 16/21

deed dt. 4/10/2022, on the basis of this power of attorney, is

denied by the respondent/plaintiff, that also will have to be

determined on the basis of evidence which may be brought on

record.

17. Mr.Sitani, in respect of the sale deed dated

4/10/2022, while disputing its execution refers to the last page of

the same, and the fact that the font size therein is smaller than the

rest of the document to contend that it is a fraudulent document

and some other page has been used by the petitioner/defendant

for getting the sale deed registered. The signature on the last page

of the respondent/plaintiff, however is not disputed. Since the sale

deed dt.4/10/2022, is also disputed, the grounds for such dispute,

will also have to be tested on the basis of evidence which may be

led in this behalf.

18. What is material is that this sale deed dt. 4/10/2022,

speaks about delivery of possession of plot no. 135, to the

purchaser, who is the petitioner/defendant. This is a registered

document, as per the requirement of the Registration Act, and

therefore would carry the presumption of due execution and

correctness of its contents, unless proved otherwise. Since its

KHUNTE WP-3412.23-Judgment 17/21

execution by the respondent/plaintiff, stands admitted, in view of

the contents of the power of attorney dated 27/9/2021, the

burden would be upon the respondent/ plaintiff to prove that it is

a fraudulent document. Prima facie, merely on the ground that

there is an inconsistent plea raised by the petitioner/defendant as

regard the consideration, that by itself would not mean that the

admission given by the respondent/ plaintiff, as indicated above

would stand wiped out, thereby making the Power of attorney

dt.27/9/2021 and the consequent sale deed dt.4/10/2022,

unreliable.

19. True it is that the electric bill and photographs by

themselves, cannot be the sole factors to hold that the

petitioner/defendant is in possession, as is held by me in Life

Style Green City Pvt. Ltd. (supra), but in case there is additional

material available to indicate so, the same can be considered, as a

cumulative effect. In the instant matter these documents have also

to be considered in light of the position as indicated from the

power of attorney dt.27/9/2021 execution and registration of

which is admitted and the consequent sale deed dated

4/10/2022, which is claimed to have been executed by the

respondent /defendant, a cumulative effect of which would

KHUNTE WP-3412.23-Judgment 18/21

indicate that the possession was delivered under this sale deed to

the petitioner/defendant. There is no reason, when the Courts

below seek to place reliance upon the sale deed dated 22/9/2021,

in favour of the respondent/plaintiff, and on the basis of the term

regarding delivery of possession as contained therein, hold that

the respondent/plaintiff was in possession, then why the same

position cannot be said to be true in respect of the sale deed dated

4/10/2022, in favour of the petitioner /defendant. The Courts

thus cannot adopt a different standard, while considering both the

sale deeds, and specifically so, when the execution and

registration of the Power of Attorney dated 22/9/2021, was

admitted by the respondent /plaintiff, whose only allegation as

against this was that the power of attorney was obtained by the

petitioner for the purposes of litigation/Court matters (para

6/pg.71 of the plaint), which position is clearly belied from a bare

reading of the said Power of Attorney, which does not speak of any

litigation, but is for presentation and registration of the deed of

sale already executed by the respondent/plaintiff. The

respondent/plaintiff is not a novice or illiterate person but is well

versed in the mode of commercial transactions and documents

evincing them, as would be indicated from the sale deed dated

KHUNTE WP-3412.23-Judgment 19/21

22/09/2021 in his favour and the Power of Attorney dated

27/09/2021 by him in favour of the petitioner/defendant and

therefore, cannot plead ignorance in respect of the contents of the

sale deed dated 04/10/2022, only the last page of which is being

disputed because of the font size and not the earlier pages which

speak of the delivery of possession.

20. The above position would clearly indicate that the

Courts below, have clearly acted contrary to the material on

record. This is not a case of concurrent finding of facts, which

ought not to be disturbed in writ jurisdiction, but a case where the

Courts below have clearly misread the admitted position, availing

on record and as is reflected by the registered documents as

indicated above.

21. In view of the above discussion made above, in my

considered opinion, this is a fit case to interfere, in the order

below Ex.5 passed by the learned Trial Court and the judgment of

the Appellate Court, in so far as the finding relating to possession.

In so far as the injunction granted by the Courts below restraining

the petitioner /defendant from creating third party rights and

interest, considering the fact that there is a serious dispute as to

KHUNTE WP-3412.23-Judgment 20/21

title involved, between the parties vis-a-vis the suit property, the

same cannot be interfered with.

22. The above position would demonstrate that in so far

as the question of possession is concerned, on the basis of the

position as availing on record, both the Court were wrong in

rendering a finding that the possession was with the

respondent/defendant on the basis of the sale deed dated

22/9/2021, by ignoring the position as was being spelt out from

the Power of Attorney dt.27/9/2021 and the subsequent sale deed

dt.4/10/2022, which needs interference.

23. Though Skyline Education Institute (supra) relied

upon by Mr. Sitani, learned Counsel for the

respondent/defendant, holds that the appellate Court will be

loathe to interfere, simply because on a de novo consideration of

the matter if it possible for the Appellate Court to form a different

opinion on the issues of prima facie case, balance of convenience

and irreparable loss, however, that is not an absolute embargo,

and given the circumstances, when the higher Court finds that the

findings rendered are not in consonance with the position as spelt

out from the documents on record, it would always be open for it

KHUNTE WP-3412.23-Judgment 21/21

to correct it by interfering. Considering what has been held above,

I do not feel it necessary to go into the other judgments cited by

the learned counsel for the petitioner.

24. In the result the order passed below Ex.5, dated

15/4/2023, by the Learned Trial Court and the judgment dated

17/5/2023, passed by the learned Appellate Court, in Appeal are

hereby modified by maintaining them in so far as they grant the

relief of restraining the petitioner/defendant from creating third

party rights and interest in the suit property till the disposal of the

suit. The impugned order and judgment in so far as they hold that

the respondent/plaintiff is in possession of the suit plot no.135,

are hereby quashed and set aside on the finding that it is the

petitioner/defendant who is in possession of the suit property and

shall continue to do so during the pendency of the suit. The

petition is partly allowed in the above terms.

25. Rule made absolute in the above terms. Considering

the circumstances, there shall be no order as to costs.

                                                                  (AVINASH G. GHAROTE, J.)

                              Wadkar

Signed by: Mr. G.S. Khunte
Designation: PS To Honourable Judge
Date: 10/11/2023 17:16:41       KHUNTE