1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR W.P.No. 5588/2007 Deepak Sureshrao Gadge vs. Vidarbha Cricket Association, VCA Stadium, Civil Lines, Nagpur and others. ------------------------------------------------------------------------------------------------------------------ Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. ----------------------------------------------------------------------------------------------------------------- CORAM : A.P.LAVANDE, J DATE OF RESERVING : 22.9.2008 DATE OF PRONOUNCEMENT: 26.9.2008. Heard Mr. R.L.Khapre, learned counsel for the petitioner and Mr. S.P.Dharmadhikari, learned Senior Counsel with Mr. Shyam Dewani, learned counsel for the respondents. 2. By this petition the petitioner challenges order dated 9.7.2007 passed by the District Judge-5, Nagpur in Misc. Civil Appeal No. 204/07 and order dated 21.6.2007 passed by the 7th Joint Civil Judge, Junior Division, Nagpur dismissing the application for interim relief filed by the petitioner. 3. The parties shall be hereinafter referred to as per their status in the trial court. 4. The plaintiff filed Regular Civil Suit No. 581/2007 against the respondents seeking injunction in respect of the property admeasuring 0.24 hectare forming part of the property bearing survey no. 101/1 of village Jamtha, District: Nagpur. Along with the suit the petitioner filed application for temporary injunction which was dismissed by the trial court 2` and the appeal preferred against the said order has also been dismissed. The plaintiff claimed that he is the owner of 0.24 hectare of land forming part of the property bearing Survey no. 101/1. He entered in the the compromise deed dated 2.8.2006 with the defendants by which he surrendered 0.10. hectare of land. According to the plaintiff, the surrender was subject to demarcation of the suit property. On 4.6.2007 the plaintiff issued communication to the defendants cancelling the compromise deed. Thereafter, the plaintiff filed the above suit for injunction. Along with the suit he filed application for interim relief. The defendants contended that they have constructed road on the portion of the land surrendered by the plaintiff and there was no land available with the plaintiff. The defendants also contended that even in respect of 0.14 hectare of land which the plaintiff claimed to be in possession the same cannot be identified. The trial court upon appreciation of the materials on record dismissed the application. The trial court held that how much land was available with the plaintiff could not be identified and, therefore, the plaintiff had failed to make out prima facie case. Consequently, the trial court dismissed the application for injunction. The appellate court also held that the boundaries of the property which the plaintiff claimed to be in possession were not clear nor the area which the plaintiff claimed to be in possession was also not clear. Consequently, the appellate court also dismissed the appeal. Aggrieved, the petitioner has invoked writ jurisdiction of this court. 5. Mr. Khapre, learned counsel for the petitioner submitted that the finding given by both the courts that the 3` area in possession of the plaintiff cannot be identified is a perverse finding and, therefore, both the orders are liable to be set aside. Mr. Khapre, submitted that even if the case set out by the defendants that they have constructed road on the portion of land surrendered is accepted, the plaintiff is entitled to injunction in respect of the balance area of 0.14 hectare of land. He further submitted that even at this stage the restitution of the possession in respect of 0.14 hectare of land can be granted by this court and this is a fit case in which the court should order injunction in respect of 0.14 hectare of land since the defendants have no right whatsoever to 0.14 hectare of land even if the case of the defendants is accepted. In support of his submission, Mr. Khapre, relied upon the following authorities. i) R.P. Sawant & others vs. Bajaj Auto Ltd. & others. 2002(4) Bom. C.R., 376. ii) Mrs. Kavita Trehan and another vs. Balsara Hygiene Products Ltd.. AIR 1995 Supreme Court, 441. iii) Dorab Cawasji Warden vs. Coomi Sorab Warden 1990(2)SCC, 117. 6. Per contra, Mr. Dharmadhikari, learned Senior Counsel appearing for the defendants submitted that the jurisdiction of this Court to interfere with discretionary orders passed by the lower courts in the matter of injunction is very limited and unless the findings given by both the courts below are perverse no interference is called for by this court. In support of this submission, Mr. Dharmadhikari relief upon the 4` judgment of the Apex Court in B.K.Maniraju vs. State of Karnataka and others (2008) 4 Supreme Court Cases, 451. He further submitted that the findings given by both the courts below that the exact area in possession of the plaintiff cannot be identified is a pure finding of fact correctly arrived at by both the courts below and, therefore, on this count alone the plaintiff is not entitled to interim relief. He invited my attention to paragraph 15 of the order passed by the trial court and paragraph 27 of the appellate order in which it has been observed that the plaintiff has not been able to identify the area in his possession. 7. I have considered the submissions made by the learned counsel for the parties, perused the record and judgments relied upon. It is well settled by the catena of the decisions of the Apex Court including the judgment in B.K.Muniraju's case (supra) that the jurisdiction of this court under Article 227 of the Constitution of India to interfere with the discretionary order of injunction passed by the lower court is very limited. Unless the findings of fact recorded by the lower courts are perverse no interference is warranted in exercise of jurisdiction under Article 227 of the Constitution of India. Perusal of the record and the impugned orders disclose that the finding given by both the courts that the plaintiff has not been able to identify the area in his possession is a finding arrived at by both the courts below on proper appreciation of the materials before them. The said findings cannot be said to be perverse. It is the case of the defendants that the road leading to Vidarbha Cricket Association Stadium is complete and in the absence of the exact identification of the property in 5` possession of the plaintiff no injunction can be granted. Since the plaintiff seeks injunction against the defendants in respect of the portion of the land forming the property bearing one survey number he has to clearly identify and prove that he is in possession of that portion of the land in order to get injunction. The plaintiff in the present case has not been able to clearly identify the property which he claims to be in possession. In so far as restitution is concerned, no doubt the court is entitled to order restitution but surely this is not an exercise which can be undertaken by writ court exercising jurisdiction under Article 227 of the Constitution of India against the orders passed by the lower courts. I, therefore, find that the plaintiff has not been able to make out prima facie case nor balance of convenience is in his favour. Therefore, no interference is called for with the impugned orders. For the above reasons, I find no ground to interfere with the orders passed by the courts below. Hence, the petition is rejected. C.A. No. 291/2008 in W.P.No. 5588/2207: Since the petition has been dismissed the application has become infructuous and disposed of as such. Judge patle 6`