1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGBAD. ---------------------------------------------------------------------------------------------------- Office notes, office Memoranda of | coram, appearance, court’s orders | Court’s or Judge’s orders. or directions and Registrar’s orders | APPEAL FROM ORDER NO.119/2009 Shri Prashant Deshmukh,Adv.for appellant. Shri K.S.Patil,AGP for R 1 to 3. Shri A.V.Patil h/f V.D.Gunale,Adv.for R.4. .... CORAM : R.K.DESHPANDE,J. DATE : 23/11/2009. 1] This appeal challenges order dated 5/9/2009 passed by learned District Judge-I, Omerga, rejecting application Exh.7 for grant of temporary injunction. 2] The appellant is the original plaintiff who has filed Regular Civil Suit No.3/2004 for declaration that he is entitled to certificate under the Rehabilitation Scheme. The said suit has been dismissed by trial Court by its judgment and order dated 1/7/2006 against which the 2 appellant has preferred R.C.A.No. 14/06, the same is pending for adjudication on merits. 3] The dispute relates to the entitlement for grant of certificate under the Rehabilitation Scheme. The appellant-plaintiff who has filed Regular Civil Suit No.3/04 claims that he is entitled to such certificate, whereas, respondent no.4 Shripati Bhagwan Giri, claims that he is entitled to such certificate under the Scheme. Appellant no.4 also filed R.C.S.No. 6/04 for that purpose. The trial Court decided both the suits and dismissed the same for want of jurisdiction and granted liberty to the parties to move the Divisional Commissioner, Aurangabad to seek their redressal in respect of Rehabilitation. Accordingly, defendant no.4 who was plaintiff in R.C.S.No.6/04 approached the Divisional Commissioner, Aurangabad who remanded the matter back to the Collector, so far as the issue regarding possession of the property was concerned. 4] On remand of the matter, the Collector issued notice of eviction to the appellant and this was 3 challenged by appellant by way of Writ Petition No.5334/08. The same was decided on 20/3/09. This Court directed the Collector, Osmanabad, to decide the grievance of the petitioner as also Respondent No.6, by 30 th June 2009. The said grievance has been decided by the Collector and accordingly, the appellant has preferred appeal before the Divisional Commissioner against the said order. The same is pending. 5] Since the Collector decided against the present appellant, the appellant moved application Exh.7 in R.C.A.No.14/06 for grant of an injunction. The learned counsel Shri Prashant Deshmukh has urged that since the date of filing of the suit, till the date of filing of this application, injunction order was operating in his favour, however, the application has now been rejected by the trial Court, as a result, his possession over the suit property is not protected and he has preferred the present appeal. 6] The learned counsel has relied upon the decision of this Court reported in 1996(2) MLR 878 Smt.Sarladevi V/s Shailesh, to urge 4 that the plaintiff who is in possession of the plot can claim injunction against anyone including its true owners and if person is in possession of the property, he can be evicted by following due process of law. It has been further held that he cannot be evicted by force and the possession of the said person is to be protected by issue of injunction order. 7] In my view, this judgment is not applicable in the present case, for the reason that the issue as to possession is pending for adjudication before the Divisional Commissioner. The Collector has passed an order under the Scheme which is subject matter of appeal before the Divisional Commissioner. Prima facie the competent authority as per the Scheme, is seized of the matter. Similarly, the question whether the civil Court has jurisdiction or not is also pending in Regular Civil Appeal filed by appellant. In view of this, it cannot be said that the appellant is being evicted in breach of law. 8] The appellate Court taking into consideration the fact that this Court had directed the Commissioner in Writ Petition filed 5 by the appellant to decide the controversy and the Collector having decided the controversy,after removal of the matter and appeal against it being pending, rejected the application for injunction. I do not find any infirmity in the order passed by the appellate Court. 9] The learned counsel states that the appellant has moved an application before the Commissioner for grant of stay, however, it has not been decided as yet. Hence it is made clear that the Divisional Commissioner shall decide the application filed by the petitioner for stay of the order on its own merits without being influenced either by any of the observations made by the District Judge in the order impugned dated 5/9/09 in R.C.A.No.14/06 or by any observations made above. In view of above, there is no substance in the present appeal, the same is therefore, dismissed. (R.K.DESHPANDE, J.) umg/ao119-09