1. This petition under Articles 226 and 227 of the Constitution of India challenging the order dated 30.3.2011 passed in Misc. Civil Appeal No.33 of 2008 passed by learned Additional District Judge and Presiding Officer Fast Track Court, by which, order of injuction dated 16.7.2008 passed below Exh. 5 by learned Principal Civil Judge, Dharampur at Valsad in favour of the plaintiff-petitioner came to be quashed and set aside.
2. It is the case of the petitioner that petitioner and respondents are cousins and belong to one family and Block No. 107, Katha No.47 admeasuring about 5 hectare 98 Are 93 sq.meter originally belonging to one Maheraji Kanaji and out of the said land, as per interse understanding and partition, the present petitioner is cultivating and in possession of 1 Acre and 14 Gunthas of land and when the respondents threatened and made an attempt to disturb lawful possession of the petitioner a suit was filed in which various material was produced and after drawing a panchnama pursuant to appointment of Court Commissioner as per the map it was revealed that on western side of the map panchnama mark 16/2 and 16/3 some material was dumped by the defendants and rest of the portion of the land was shown as open land and, therefore, the trial Court rightly believed that the petitioner was in possession of 1 Acre and 14 Gunthas of land. The above prima facie findings for grant of interim relief in favour of the petitioner was based on correct appreciation of material on record namely revenue record as well as map prepared by the Court Commissioner pursuant to the panchanma at mark 16/2 and 16/3 and, therefore, a different interpretation based on the very same panchnama and report of the Court Commissioner including the map by the learned Appellate Judge reversing the findings of the fact and holding that the trial Court erred in granting interim injunction in favour of the petitioner is nothing but illegal exercise of powers at appeal stage warranting this Court to interfere in exercise of powers under Articles 226 and 227 of the Constitution of India.
3. Mr.
A.J. Shastri, learned advocate, for the petitioner would contend that reversal of the findings of fact for the purpose of grant of interim injunction based on a prima facie case, balance of convenience and irreparable hardships after appreciating the joint and/or co-ownership of 1 Acre and 14 Gunthas of disputed suit land was without a cogent reason by the appellate Court and further if panchnama and map of the disputed suit land prepared by the Court Commissioner is seen only a part of the suit land and western side reveal illegal dumping of material by the defendants which would not establish possession but an attempt to take away lawful possession of the petitioner who had inherited and occupied the land from ancestors pursuant to family partition. It is therefore submitted that petition deserves to be allowed by quashing and setting aside the impugned order by restoring the order of learned Civil Judge granted below Exh.5 granting interim injunction in favour of the petitioner.
4. Per contra, Mr. Mangukia, learned advocate, for the respondents would submit that interpretation put forth by the trial Court, all reports and panchnama, map of Court Commissioner by the trial Court do not reveal correct factual aspects and even partition was also disputed and, therefore, the appellate Court was justified in interfering with the findings of prima facie nature of the trial Court reversing the same and by quashing and setting aside the said order.
5. Upon perusal of the record, orders passed by the Courts below and particularly the report of Court Commissioner including the map drawn would reveal western side of the disputed land admeasuring 1 Acre and 14 Gunthas, three stakes of used material are found and rest of the portion reveal open land but nowhere it mentions possession of petitioner herein. Even in support of pleadings of inter se partition in the revenue record name of the petitioner/plaintiff is shown as co-occupant and nothing beyond that. In view of the above to grant injunction against respondent protecting the plaintiff petitioner exclusively by the trial Court is rightly corrected by the appeal Court in exercising of the appellate jurisdiction which cannot be said to be illegal exercise of power contrary to law warranting any interference of this Court in exercise of extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India.
6. In absence of merit, this petition is rejected. No costs. Notice discharged.
7. The request of learned advocate for the petitioner to expedite the suit for which appropriate prayer can be made before the concerned Court.
[ANANT S. DAVE,J .] //smita// Top