This writ petition is preferred challenging the order passed by the learned Principal Civil Judge, Jhagadiya on an application for injunction in Regular Civil Suit No. 21 of 2010 whereby, he denied the request for grant of injunction in favour of the present petitioner who is the original plaintiff.
Aggrieved by such an order, the petitioner preferred an Appeal-from-Order being Misc. Civil Appeal [A.O] No. 14 of 2012 and vide order impugned dated 7th February 2012 passed by the learned Additional District Judge, Bharuch concurred with the findings of the learned Principal Civil Judge, Jhagadiya denying the request for grant of injunction.
Briefly to state the facts - the present petitioner preferred a suit in relation to the suit property bearing Survey No. 117 and 114 of village Tarsali. It is the say of the petitioner that his grandmother Bai Sarfan executed a Will in favour of his father on 22nd May 1992 and she expired on 23rd May 1992. Whereas, the father of the petitioner herein expired on 2nd November 2002. It is also the case of the petitioner that the properties were in possession of the father of the petitioner since May 1992, till he expired and thereafter, its possession is with the present petitioner.
As the respondents attempted to take possession of the suit property on 3rd June 2010, a Regular Civil Suit No. 21 of 2010 has been preferred before the learned Principal Civil Judge, Jagadiya. It is also the say of the petitioner that entry in the names of the respondents was mutated in the year 2007 before the Revenue authorities, which was behind the back of the petitioner.
Heard learned advocate Mr. Saiyed for the petitioner who fervently urged the Court that non grant of injunction may cause serious disputes amongst the family members and the petitioner is also ready to keep accounts of all the agriculture produces derived out of the land which is in his possession. He also further urged that the petitioner has been in possession of the suit land from the year 1992 when his grandmother passed away, and at this stage his possession may not be disturbed during the pendency of the suit, and therefore, he urged the Court to intervene in the order impugned.
On having heard learned advocate for the respective sides and on close perusal of the orders of both the Courts, it can be noticed that the trial Court; while deciding application for the injunction, has aptly dealt with the factual matrix presented before it and on the basis therefore, concluded that the plaintiff-petitioner was unable to establish prima facie case in respect of the disputes which were at large before it. There were may questions and contentions issued, in the opinion of the trial Court, which needed trial but, at the stage of grant of injunction, it deemed it fit not to grant injunction to the present petitioner herein.
When challenged before the appellate forum, as can be noted from the order impugned, there is an elaborate discussion of the facts particularly in respect of the averments of the execution of will by the grandmother of the present petitioner, the absence of any dependable proof; entry mutated in the revenue record in the joint names of other family members which includes the respondents and various other factual aspects leading the Court to concur with the findings of the trial Court in denying the request of grant of injunction in favour of the plaintiff-petitioner.
It would be necessary to make a mention of the judgment of the Apex Court in case of Nibaran Chandra Bag v. Mahendra Nath Ghughu [Deceased] after him his heir & Lrs., reported in AIR 1963 SC 1895, wherein the Court has made it explicitly clear that when consecutively two courts deny the relief of injunction, the High Court in writ petition preferred under Article 227 of the Constitution is not to sit as an appellate Court and it is required to interfere only in the rarest of the rare cases where there is a material illegality flowing from such an order.
As noted hereinabove, in the opinion of this Court, both the Courts have aptly dealt with the factual matrix and concluded at a prima facie stage that no equitable relief can be granted; as sought for by the present petitioner and Courts are also of the opinion that as the entry was mutated in the names of all the members of the family - being the joint property, others cannot be prevented from entering the suit land. Independently also, on examination of the facts, it can be said that non grant of relief is not going to cause any injustice to the petitioner as neither of the Courts has put a seal on the fate of either side, by such denial of the right.
Resultantly, this writ petition fails and the same is dismissed in limine.
{Ms.
Sonia Gokani, J.} Prakash* Top