The appellant has filed the second appeal being aggrieved by the judgment and decree passed by the learned 6th Additional District Judge, Thane in Civil Appeal No. 193 of 1999 on 10.2.2004. This second appeal was admitted on 16.08.2012 and following is the substantial question of law framed at the time of admission of the second appeal.

"Whether the Lower Appellate Court erred in rejecting appellant's prayer for directing the respondent for restoration of the possession of the suit flat"

2. Few facts necessary for the disposal of this second appeal are as under:-

The respondent herein filed Regular Civil Suit No. 395 of 1994 in the Court of Civil Judge, Senior Division, Thane in regard to the premises more particularly set out in the plaint being Block No. 2 admeasuring 610 sq. feet. According to the respondent, the respondent had agreed to sell the suit premises to the appellant on 13.7.1993 for a total consideration of Rs. 1,50,000/-. It was also the case of the respondent that the possession of the suit premises was handed over to the appellant and thereafter in the month of August 1994 the appellant surrendered the possession to the respondent. It is also the case of the appellant that the Deed of Cancellation of agreement dated 13.7.1993 was executed on 18.5.1994 and the sum of Rs. 10,000/- was returned to the appellant. According to the respondent, in the month of September 1994 the appellant attempted to dispossess the respondent from the suit premises and that is how the respondent had to file the suit so as to seek an order of injunction restraining the appellant from interfering with the possession of the respondent in regard to the suit premises. The learned Civil Judge Senior Division, Thane by judgment and decree dated 17.9.1999 decreed the suit. The appellant challenged the said judgment and decree by filing Civil Appeal No. 193 of 1999 in the District Court at Thane, being aggrieved by the judgment and decree passed by the learned Civil Judge Senior Division at Thane on 17.9.1999. The said appeal was allowed by the learned District Judge by judgment and order dated 10.2.2004 and the suit filed by the respondent was dismissed, that is to say the injunction issued against the appellant was dissolved.

3. The appellant, though succeeded in getting an order in his favour as regards the order of injunction still filed this appeal being aggrieved by the judgment and decree dated 17.9.1999 passed by the learned Civil Judge, Senior Division, Thane as also the judgment and decree dated 10.2.2004 passed in Civil Appeal No. 193 of 1999 by the learned District Judge at Thane on the ground that the prayer made by the appellant for restoration of possession in respect of the suit premises has been rejected by both the courts.

4. I have extensively heard learned Advocates on both sides. The appellant, after the service of the suit summons on the appellant appeared before the court and filed written statement. In the written statement the appellant took up a positive stand that the appellant was in possession of the suit premises on 15.10.1994 and that between the night of 16.10.1994 and 17.10.1994 at about 1.00 a.m. to 2.00 a.m. respondent dispossessed the appellant and took the possession in respect of the suit premises. On the strength of this stand, the appellant filed an application in the trial court under Section 151 of the Code of Civil Procedure r/w. Section 39 of the Specific Relief Act. In the said application the appellant prayed that the order of status quo granted on 15.10.1994 in favour of the respondent be set aside. By prayer clause (b) it was prayed that the possession of the suit premises be restored to the appellant. It is required to be mentioned that the respondent instituted the suit on 15.10.1994 and applied for interim relief and order of status quo was granted so as to direct the parties to maintain status quo. The appellant claims that between the night of 16.10.1994 and 17.10.1994 the appellant was