1. Rule. Learned advocate Dilip Kanojia waives service of rule.
2. The petitioner are the original defendants of Regular Civil Suit No. 269 of 2010, wherein the respondents herein original plaintiffs, had sought interim injunction in respect of suit land bearing survey No. 50/2, block No. 59 of village Okha, sub district Choryasi, district :Surat (hereinafter referred to as 'the said land).
3. The plaintiff has made claims by virtue of registered Will dated 16th April 1993 and codicil dated 16th July 2005 of deceased Kankuben wd/o. Maganbhai Parbhubhai. It is claimed by the plaintiffs respondents that they are in possession of the suit land and have sought declaration to the effect that the petitionerdefendant has no right or possession over the suit land. In this factual background the Court granted interim injunction in favour of the respondents plaintiffs and also directed both the sides to maintain status quo in respect of the suit property.
4. Being aggrieved by such an order the petitioner herein preferred Misc. Civil Appeal No. 31 of 2011 wherein vide application Exh. 19 the Appellate Court confirmed the order of the trial court by its order dated 20th October 2011.
5. This petition under Article 227 of the Constitution of India, therefore is preferred raising various grounds as detailed in the memo of the petition.
6. Learned advocate Mr. Amit Thakkar appearing for the petitioner urged that the petitioner herein challenged only the first part of the order where the possession is believed by the Courts of the respondent plaintiff and with regard to the second part of order of maintenance of status quo by both the sides, the petitioner has no objection. He urged that the petitioner is the daughter of deceased Kankuben and Kankuben also lived with the petitioner. The petitioner is clearly in possession of the suit land and not only the panchnama is indicative of the same but some of the witnesses had supported her version since, both the Courts below have disregarded overwhelming evidence in respect of the possession, this Court requires to interfere with such findings.
6.1 Per contra, learned Senior Counsel Sanjanwala urged that in absence of any illegality or any jurisdictional error, this Court need not exercise its power under Article 227 of the Constitution of India. Both the Courts have taken sufficient care in deciding the interim injunction application and therefore also, no cause is arising for intervention.
7. In the aforementioned background and on having regard to the submissions of both the sides as also considering the order impugned thoughtfully, this petition merits no acceptance as detailed hereinafter.
8. In the order of the trial court itself it has granted interim injunction against the present petitioner and directed the petitioner not to interfere in any manner with the possession of the respondents plaintiffs. Further more, both the sides have been directed not to transfer the suit land or create any charge over the same in any manner till the disposal of the suit. The Appellate Court also confirmed the said order in toto as both the sides have agreed not to challenge the second part of the said order directly maintainance of status quo in respect of suit land on both the sides in second part of the order is not being assailed at all in this petition and the only focus is on first part where the petitioner herein has been injuncted from entering the suit land and disturbing the possession of the respondents plaintiff as possession is believed of the respondentsplaintiffs.
9. At the outset it is noted to be stated that under Article 227 of the Constitution of India any such challenge is made to the orders of the trial court or the Appellate Court, this Court is required to exercise the powers of supervisory jurisdiction only in the rarest case when either jurisdictional error is made out or the patent illegality emerges requiring interference to protect against grave injustice to the party concerned.
In the instant case none of the circumstances exist for interfering with the findings of both the Courts made at prima facie stage.
10. As can be noted from the order of the trial court that the claim of the respondents plaintiffs was on the basis of the registered will dated 16th April 1993 where the deceased Kankuben has bequeathed her property and particularly the suit land in favour of her daughter Valiben. Deceased Kankuben has two daughters namely Valiben and present petitioner Shantiben. It appears that Kankuben continued to reside with the family of Valiben and by a registered will of the year 1993, she bequeathed this property to Valiben however on 29th July 1997, Valiben predeceased Kankuben who passed away in the year 2006. And, therefore in the year 2005, a codicil was made by Kankuben bequeathing her properties to the heirs of Valiben. On the basis of such will, the plaintiffs have claimed possession and requested the Court to direct the petitioner herein not to dispossess them of the suit land. The trial court also noted that there were prima facie evidences to indicate the possession of the land is within the respondents plaintiffs and various affidavits were made by land owners/cultivators of the neighbouring lands to vindicate prima facie stand of the respondents plaintiffs. Moreover, the photographs produced by the present petitioner were held prima facie to have been taken only to create evidence. Resultantly, it is believed that the possession is of the plaintiffs and therefore directed the petitioner not to disturb such possession till the final hearing of the suit.
11. The Appellate forum also in a detailed discussion of the evidence for reaching prima facie conclusion, had confirmed the order of the trial court. The Lower Appellate Court also noted that some of the persons who have filed affidavits in favour of the petitioner are not the persons who are having the land apartment to the suit land nor are they residents of neighborhood where the land is situated. The Appellate Court on the contrary held that those persons appear to be neighbors of the petitioner herein. The court Commissioner also carried out the panchnama as per the direction of this Court on 18th June 2010 and it was noted by the Appellate Court that the petitioner herein did not choose to remain present at the time of panchnama as well and that further fortified conclusion of both the Courts in establishing prima facie possession of the plaintiff respondent.
12. Thus, it can be unfailingly noted that both the Courts have elaborately and sufficiently dealt with issues which were at large before them. At a prima facie stage, balance of convenience and irreparable loss are other two requirements which are required to be regarded by the Court while entertaining any plea of protection, and the Court needs to decide the same on the basis of the pleadings, affidavits as also on the basis of documentary material presented before the Court and every time there is question of possession of the suit land. At a prima facie stage, it is possible for this Court to conclude that both the Courts have given sufficient grounds for not believing the affidavit which have been made by some of the persons in favour of the present petitioner and there appears to be overwhelming prima facie evidence for the Courts to protect the possession of the plaintiff respondents.
13. Not only the possession from the time of the deceased Kankuben that the respondents have enjoyed but the same is based on the will which was registered way back in the year 1993 with the codicil of the year 2005. No error much less illegality appears calling for interference. Resultantly, this petition being devoid of any merits and deserves no entertainment, the same is rejected.
(Ms. Sonia Gokani,J.) mary//