[1] This petition is filed under Articles 226 and 227 of the Constitution of India against the order dated 29th August 2011 passed by the learned Additional District Judge, Vadodara at Chhotaudepur in Civil Misc. Appeal No.61 of 2011 filed by the petitioners challenging the order dated 23rd February 2011passed by the learned Principal Civil Judge, Jetpur Pavi below application Ex.5 in Regular Civil Suit No.1 of 2011.
[2] The respondents herein are the original plaintiffs who have filed Regular Civil Suit No.1 of 2011 for declaration and permanent injunction in respect of the suit properties. In the said suit, application Ex.5 came to be preferred by the respondents whereby the learned trial Judge by order dated 23rd February 2011 partly allowed the said application and restrained the petitioners from causing any damage to the suit properties situated in Survey No.256/1 and also directed to maintain status-quo till the final decision of the suit. The learned trial Judge, while passing the above said order, has recorded prima facie findings to the effect that the respondents - original plaintiffs have been in possession of the suit properties for last about 40 years and looking to the long possession of the disputed properties, the learned trial Judge thought it fit to partly allow the application Ex.5 granting protection to the original plaintiffs. The petitioners being unsuccessful carried the order passed by the trial Judge in appeal under the provisions of the Civil Procedure Code. The learned appellate Judge concurred with prima facie findings recorded by the learned trial Judge. The learned appellate Judge has also recorded the prima facie findings to the effect that the plaintiffs have been in possession of the suit properties from 1966 to 1983 and, thereafter, the plaintiffs have continued in possession and for about 44 years, the plaintiffs have remained in possession. The possession of the plaintiffs is not that of any encroachment and the possession of the plaintiffs is required to be protected. After recording these prima facie findings, the learned appellate Judge has further recorded that the learned trial Judge has exercised sound discretion as per the principles of law while dealing with the application Ex.5 and there was no reason to interfere with the discretion exercised by the learned trial Judge and accordingly, the learned appellate Judge dismissed the appeal.
[3] I have heard learned advocate for the petitioners and I have also gone through the orders passed by both the Courts below. Learned advocate for the petitioners has not been in a position to point out anything to take a different view than the view taken by both the Courts below. Both the Courts below have recorded concurrent findings and found that the respondents - plaintiffs have been in possession of the suit properties and simply because a different view could have been possible that was not sufficient to refuse the interim protection to the respondents - plaintiffs. I do not think it fit to interfere with the prima facie findings given by both the Courts below while exercising powers under Articles 226 and 227 of the Constitution of India and hence, the petition is devoid of merits and is required to be rejected, accordingly stands rejected.
[ C. L. SONI, J. ] vijay Top