FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s Orders. COURT’S OR JUDGE’S ORDERS WP/6288/2009 RAMBHAU V/S DAGDU 1. Heard Shri Kulkarni, learned Advocate for the petitioner. 2. Petitioner is plaintiff in RCS No.118 of 2008 filed on 26.8.2008. Decree of perpetual injunction is sought against the defendant from obstructing the plaintiff from enjoying the fruits of tamarind tree standing in the property of the plaintiff himself. In substance, it is the contention of the plaintiff that he owns the immovable property described in paragraph No.1 of the plaint and that there is a old tamarind tree standing in the said property to the Northern side of the wall of the house of the plaintiff. According to the plaintiff he is, in law, entitled to enjoy the fruits of the said tree and accordingly he is enjoying the same for years together. According to the petitioner, the respondent has no concern with the suit tree. Therefore, the suit came to be filed against the respondent, accompanied by an application under Order XXXIX Rule 1 and 2 of CPC for temporary injunction. 3. The trial Court, after hearing the parties, rejected the said application under Order XXXIX Rule 1 and 2 of CPC. Said order was challenged in Appeal No.56 of 2008. The first appellate Court dismissed the same on 29.4.2009. Said order is questioned in the present writ petition 4. Learned counsel for the petitioner took me through the copies of plaint and map annexed with the plaint showing the location of the tamarind tree. According to the learned counsel for the petitioner, it is the old tree. FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s Orders. COURT’S OR JUDGE’S ORDERS Commissioner was appointed in the trial Court. He carried out the commission work and submitted a report on record (Exhibit 27). I have gone through the same. 5. Learned counsel for the petitioner submits that the respondent had filed RCS No. 272 of 2002 for perpetual injunction against the petitioner. However, it was dismissed in default on 7.10.2004. He further admitted that the respondent had obtained incorrect sale deed from erstwhile owner of the property making mention of existence of one tamarind tree in the said property. According to him, there was no such tamarind tree in the property purchased by defendant. The sale deed is illegal. He submitted that, therefore, orders passed by the courts below are per se illegal and need to be quashed and set aside. 6. I have considered the submission of the learned counsel for the petitioner. I have also gone through the orders passed by the courts below. 7. The judgment of the first appellate court did refer the fact of filing of RCS No.272 of 2002 and its dismissal. The first appellate Court in paragraph No.9 of the judgment has made a categoric observation that the plaintiff did not file documentary evidence to show that he is exclusive owner of the tamarind tree. The trial Court relied on the copy of the original sale deed in favour of defendant, specifically mentioning that the tamarind tree is standing in the property purchased by defendant. The first appellate court also did refer other documents FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s Orders. COURT’S OR JUDGE’S ORDERS i.e. mutation entries, 8/A extract, assessment list etc. The first appellate Court on re- assessment of material on record arrived at a conclusion that the judgment of the trial court is justified and legal and no case for temporary injunction is established. The first appellate Court refused to interfere in the matter. 8. On examination of the orders of the Courts below and considering the submissions of the learned counsel or the petitioner, in my view, no case for invoking extra-ordinary jurisdiction is established. The petition stands dismissed in limine. No order as to costs. 9. It is made clear that these are the prima facie observations and the learned trial Judge shall hear and decide the suit on merits and in accordance with law. Dt.5.2.2010 (S.B.DESHMUKH, J.) akl