ORDER : SANGEETA K. VISHEN, J. Order in First Appeal: 1. Mr Jigar P. Raval, learned advocate appearing for the appellant – original plaintiff, submitted that an agreement – Exhibit 91 was executed between the plaintiff on one hand and the defendants on the other which, was with respect to Block no.409/1. It is submitted that certain amount was paid in cash and through cheques. It is submitted that during this period, an amount of Rs.21 lacs was paid to the defendants in furtherance of the agreement; however, since nothing was heard that the suit for specific performance was filed by the appellant – original plaintiff in the year 2008 seeking specific performance which, now has been dismissed, inter alia, on the ground that Agreement to Sell is not signed by all the co-owners. It is also submitted that in the year 2014, there was a status quo granted and the matter traveled up to the High Court and in the Appeal from Order, this Court, directed maintenance of the status quo till the final disposal of the suit and hence, the same, has continued all throughout. Even after dismissal of the suit, the same has been extended up to tomorrow i.e. up to 17.01.2025. 2. It is further submitted that in the response filed by the defendants, the stand taken, is that the plaintiff has issued the cheques by applying the pressure from the agents. It is also stand taken that there was a clear understanding between the parties that within a period of three months, the whole of the consideration amount, to be paid and in case, the plaintiff fails to make the payment, then the amount of Rs.21 lacs which has been received, shall be forfeited. It is also stand taken by the defendants that by keeping the vengeance, that the plaintiff has put up the construction including a Temple of Hanumanji together with the fencing. 3. It is next submitted that one of the defendants, who has entered into the witness box, has admitted the aspect of the agreement entered into by his elder brother i.e. defendant no.1. There is an admission of receipt of the amount through cash and cheques in the savings account and which has also been withdrawn. Therefore, agreement was executed; receipt of the amount in the savings bank account and consequent withdrawal, everything is undisputed. There is an admission of receipt of the amount through cash and cheques in the savings account and which has also been withdrawn. Therefore, agreement was executed; receipt of the amount in the savings bank account and consequent withdrawal, everything is undisputed. It is therefore submitted that when there is a specific admission, the learned Judge, ought not to have dismissed the suit only on the ground that the plaintiff has failed to prove his case. 4. It is next submitted that the issues which have been formulated, have not been properly decided. Issue no.1 which is, as to whether the plaintiff proves that there existed an Agreement to Sell with respect to the suit property between the plaintiff and the defendant, has been answered in negative which, would go against the stand taken by the defendants in their written statement – Exhibit 22. The issue as regards possession, has also been answered in negative which also, would be contrary to the stand taken on the record inasmuch as, in the written statement, in paragraph 21, there is a clear statement that the plaintiff has constructed the temple over the land in question. Besides, in the evidence of the witness, he has agreed that the possession has been handed over by the elder brother to the plaintiff; however, what essentially weighed with the learned Judge, is that the plaintiff has not produced any documentary evidence to show the consent of all the co-owners for the purchase of the disputed property so also the payment of the remainder amount with regard to the disputed property. It is submitted that when there was a clear admission and the burden was discharged, the learned Judge, ought not to have expected the plaintiff to prove his case. 5. On the other hand, Mr Sharvil P. Majmudar appearing with Mr Jamshed Kavina, learned advocate for the defendant no.4 and defendant no.8.4, on caveat, submitted that there is no concluded contract inasmuch as, Exhibit 91 cannot be said to be an understanding. Also, in the evidence of the plaintiff, it has been clearly stated that Agreement to Sell was to be executed after the payment. Therefore, there is no question of there being any Agreement to Sell executed in favour of the plaintiff. Also, in the evidence of the plaintiff, it has been clearly stated that Agreement to Sell was to be executed after the payment. Therefore, there is no question of there being any Agreement to Sell executed in favour of the plaintiff. Besides, in the evidence the plaintiff has exhibited ignorance as to the payment of the cash to the defendants or any receipt issued in lieu of the payment. He has also admitted that the whole of the amount towards the consideration has not been paid. It is submitted that when a person, has entered into an Agreement to Sell, it is but natural that he would remember the date on which the agreement was executed; however, the plaintiff, has been unable to indicate any evidence. 6. It is further submitted that so far as readiness and willingness of the plaintiff is concerned, the plaintiff was unable to place on record any evidence regarding the payment of remainder amount of Rs.32 lacs. There is a clear admission that there is no evidence to prove that there is sufficient provision for the payment of the remainder amount. Even the witness who has been examined by the plaintiff has not supported his case inasmuch as, he has also pleaded ignorance about the transaction so also the amount paid. Therefore, the learned Judge has rightly observed that the onus was on the plaintiff to substantiate the execution of the agreement between the parties and he has failed to do so. 7. Reliance is placed on the judgment in the case of Ambalal Sarabhai Enterprise Limited vs. K.S. Infraspace LLP Limited reported in (2020) 5 SCC 410 . It has been held and observed that grant of relief in a suit for specific performance is itself a discretionary remedy. A plaintiff seeking temporary injunction in a suit for specific performance will therefore have to establish a strong prima facie case on the basis of undisputed facts. The conduct of the plaintiff will also be a relevant consideration for purposes of injunction. 8. Reliance is placed on the judgment in the case of Janardan Das vs. Durga Prasad Agarwalla reported in 2024 (0) AIJEL-HC-74136 wherein, the aspect of readiness and willingness on the part of the plaintiff was considered and when the Court found that the plaintiff has failed to demonstrate the readiness and willingness to perform the obligation, specific performance was denied. 9. 9. Reliance is also placed on the judgment in the case of R. Sharma Naik vs. G. Srinivasiah reported in 2024 (0) AIJEL-HC-74344. It has been, inter alia, held and observed that when a suit is filed seeking specific performance, the plaintiff is obliged not only to make specific statement and averments in the plaint but is also obliged to adduce necessary, oral and documentary evidence to show the availability of funds to make payment in terms of the contract in time. 10. It is therefore submitted that the plaintiff could not prove the aspect of readiness and willingness inasmuch as, in his own evidence, he has stated that there was no provision of the remainder amount of Rs.32 lacs with him to be paid. It is next submitted that one cannot presume the possession in favour of the plaintiff, for which one has to place on record substantial evidence; however, the possession cannot be believed only on the basis of the report of the Court Commissioner. It is next submitted that in the plaint, the plaintiff has prayed for execution of the separate registered sale deed by all the co-owners. It is submitted that in absence of any concluded contract, the said relief cannot be granted for, the plaintiff will have to succeed first. It is only thereafter, the second alternative prayer i.e. of compensation, could be allowed. The plaintiff has asked for restraint order that no action shall be taken for possession which clearly suggest that plaintiff was not in possession. It is also submitted that even otherwise, as per the provisions of Section 17 of the Registration Act, 1908, if the possession is claimed, there has to be a deemed registered conveyance deed. It is therefore urged that no protection can be extended at this stage. 11. Heard the learned advocates appearing for the respective parties. 12. Admit. 13. Mr Jamshed Kavina, learned advocate waives service of notice of Admission on behalf of defendant no.4 and defendant no.8.4. Order in Civil Application: 1. Heard Mr Jigar P. Raval, learned advocate appearing for the applicant – original plaintiff and Mr S. P. Majmudar, learned advocate appearing with Mr Jamshed Kavina, learned advocate for the respondent nos.4 and 8.4. 2. Issue Rule, returnable on 06.02.2025. 3. Mr Jamshed Kavina, learned advocate waives service of notice of Rule on behalf of respondent no.4 and respondent no.8.4. 4. 2. Issue Rule, returnable on 06.02.2025. 3. Mr Jamshed Kavina, learned advocate waives service of notice of Rule on behalf of respondent no.4 and respondent no.8.4. 4. So far as grant of interim relief is concerned, parties are directed to maintain status quo as of today, till the next date of hearing, for the reasons discussed hereinbelow. 5. Needless to clarify that observations hereinbelow are prima facie in nature. 6. Pertinently, it appears that Exhibit 91 is a writing executed between the plaintiff on one hand and the defendant no.1 on the other; which records about the receipt of an amount of Rs.7,25,000/- in cash and four cheques, two dated 10.03.2006 and two dated 11.03.2006 in favour of defendant nos.1, 2, 3 and 4 respectively. The said aspect is strengthened by the bank statement – Exhibit 93. It is sought to be argued by the learned advocate appearing for the respondent no.4 that it cannot be construed to be concluded contract; however, if one considers evidence of the defendant no.4, there is a clear admission to the effect that the defendant no.1 being elder brother, was taking care of all the aspects, viz.; the heirship; partition, mortgage etc with respect to the land in question. It is also admitted that till the time the suit was filed, all steps were taken by his elder brother i.e. defendant no.1. The knowledge of filing of the suit, is also admitted. It is agreed that the respondent no.4, came to know about the sale transaction between the plaintiff and his elder brother i.e. defendant no.1 when the suit was filed. Execution of the transaction by the defendant no.1 on his behalf and on behalf of the other defendants is admitted. Receipt of the amount and handing over of the possession is also accepted. Further, the witness has also accepted that he has received an amount of Rs.1 lac through cheque which was deposited in his bank account and that he has withdrawn the same. In the writing Exhibit 91, he has accepted that as a seller, the name of the defendant no.1 is mentioned and he has signed it. 7. Therefore, in the prima facie opinion of this Court, writing Exhibit 91 is admitted by the defendant no.4 i.e. respondent no.4. In the writing Exhibit 91, he has accepted that as a seller, the name of the defendant no.1 is mentioned and he has signed it. 7. Therefore, in the prima facie opinion of this Court, writing Exhibit 91 is admitted by the defendant no.4 i.e. respondent no.4. Also, in the written statement - Exhibit 22; filed in the suit proceedings, in paragraph 21, there is a clear statement made about the condition of payment of consideration within a period of three months and handing over of the possession thereafter. The aspect of receipt of Rs.21 lacs is also acknowledged. In fact, it is a stand taken that it was agreed between the parties that if within the period of three months, the remainder amount is not paid, amount of Rs.21 lacs already paid, would stand forfeited. It is also the stand taken that keeping vengeance, that the possession has been taken over and there is a construction of temple. Therefore, in the prima facie opinion of this Court, the aspect of writing – Exhibit 91, the understanding between the parties and the receipt of the amount, are not in dispute. 8. Mr Jigar P. Raval, learned advocate for the applicant has also pointed out certain documents, namely, notices issued by the Corporation in the name of the plaintiff as occupier and administrator of the original owners. Moreover, as per the report of the Court Commissioner, the notice was issued to both the parties. The plaintiff remained present; however, the defendants chose not to remain present. Hence, it appears that the possession as agreed and admitted by the defendant no.1, was handed over to the plaintiff. Besides, application Exhibit 5 and counter application - Exhibit 26 were filed and it has been reported by the learned advocates, that both the applications were allowed and the parties were directed to maintain status quo. Defendants, had preferred an Appeal from Order no.302 of 2013 which came to be dismissed as not pressed vide order dated 13.02.2015 and in paragraph 2, it is recorded thus: “2. Mr.Joshi, learned advocate for the appellants and Mr.Mehul Sharad Shah, learned advocate for the respondent (original plaintiff) jointly submit that, the effect of withdrawal of this Appeal from Order would be that the status-quo as ordered by the Trial Court vide order dated 10.04.2013, which has operated all throughout shall continue till final disposal of the suit.” 9. Mr.Joshi, learned advocate for the appellants and Mr.Mehul Sharad Shah, learned advocate for the respondent (original plaintiff) jointly submit that, the effect of withdrawal of this Appeal from Order would be that the status-quo as ordered by the Trial Court vide order dated 10.04.2013, which has operated all throughout shall continue till final disposal of the suit.” 9. After the dismissal of the suit, application was filed and the learned Judge, vide order dated 17.12.2024, has extended the appeal period. 10. Hence, on over all consideration of the case, it would be in the fitness of things, that the parties are directed to maintain status quo, till the next date of hearing. Direct service is permitted.