The court emphasized the importance of prima facie evidence of the agreement of sale and possession of the property in cases of specific performance.

( 1 ) THIS civil revision petition is preferred by the petitioner who was the plaintiff in the trial court against the order dated 26-8-1987 passed by the Additional Civil Judge, Bidar, in M. A. No. 37 of 1985 allowing the miscellaneous appeal and setting aside the order dated 8-8-1985 passed by the Munsiff, Basavakalyan, in O. S. No. 79 of 1984 dismissing I. A. No. II filed by the respondent under O. 39, R. 4 of the C. P. C.

( 2 ) I have heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the records of the case.

( 3 ) THE petitioner has filed a suit against the respondent for specific performance of agreement of sale dated 15-5-1984. He also filed an I. A. under O. 39, Rr. 1 and 2, C. P. C. for temporary injunction and a temporary injunction came to be issued on 2-6-1984 ex parte. After the defendants appeared in the suit and filed a written statement on 18-9-1984 they filed 1. A. No. II for vacating the temporary injunction under O. 39, R. 4, C. P. C. The trial Court after hearing both sides and perusing the material on record dismissed I. A. No. 11 filed by the respondents and made the temporary injunction issued on 2-6-1984 absolute. The respondents were aggrieved by this order and they have challenged the said order in appeal in the Court of the Civil Judge, Bidar, and that appeal came to be heard by the Additional Civil Judge, Bidar, and he allowed the appeal and set aside the order of the Munsiff, Basavakalyan, and allowed I. A. No. 11 filed by the respondents and dismissed IA. No. I. It is this order that is challenged in this case.

( 4 ) THE basis for the Additional Civil Judge to set aside the order of the Miinsiff is the ruling of this Court in U. N. Sharma v. Puttegowda (AIR 1986 Kant 99 ). In that ruling this Court has held where in a suit for permanent injunction the plaintiff alleged agreement of sale and the execution is denied by the defendants, the plaintiff is not entitled to claim any relief under Order 39, Rules 1 and 2, C. P. C. This is a ruling delivered by the Hon'ble single Judge of this Court. There is another ruling reported in Mahadevamma v. B. S. Lingaraju (1981 (2) Kant LJ 388) wherein the Division Bench of this Court consisting of Hon'ble M. N. Venkatachaliah and N. R. Kudoor, JJ. , have held as follows:-"an intending transferee under a contract for sale of immovable property, who is put in possession of the property in part performance of the contract, can as a plaintiff bring an action for the possessory remedy of an injunction in protection of his possession against the transferor. "their Lordships have quoted the ruling of the Supreme Court in Ranachhoddas Chhaganlal v. Devaji Supdu Dorik (AIR 1977 SC 1517) wherein the, apex Court has held as follows :-"one of the limbs of part performance is that the transferee has in part performance of the contract taken possession of the property. The most important consideration is the contract. The true principle of the operation of the acts of part performance seems to require that the acts in question must be referred to some contract and must be referred to the alleged one; that they prove the existence of some contract, and are consistent with the contract alleged. The doctrine of part performance is defence. It is a sword and not a shield (sic ). It is a right to protect his possession against any challenge to it by the transferor contrary to the terms of the contract. "this ruling though on earlier day was not brought to the notice of this Court when this Court passed a judgment reported in AIR 1986 Kant 99. In view of the judgment of the Division Bench delivered by this Court in 1981 (2) Kant LJ 388, the law laid down in the ruling reported in AIR 1986 Kant 99, cannot be said to be a good law. The lower appellate Court relied on the ruling reported in AIR 1986 Kant 99, which cannot be said to be a good law in view of the fact that the said ruling has not taken into consideration the