:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL SIDE JURISDICTION WRIT WRIT WRIT PETITION NO.9000 OF 2007 PETITION NO.9000 OF 2007 PETITION NO.9000 OF 2007 Dagdu Maruti Parte and Others ..Petitioners V/s Amin Salim Haji and another ..Respondents Shri V.P. Warunjikar for petitioners Shri Sushil Mahadeshwar with Ms. Ranjana Todankar for Respondent No.s 1 and 2 CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 20TH FEBRUARY, 2008 : 20TH FEBRUARY, 2008 : 20TH FEBRUARY, 2008 P.C. 1. Rule. By consent rule made returnable forthwith and heard finally. 2. By this petition the petitioners/original plaintiffs impugn the order dated 1st August, 2007 passed by the Ad-hoc District Judge at Satara dismissing the petitioners’ Appeal. The said Appeal was filed challenging the order dated 29th March, 2007 passed by the Joint Civil Judge, Junior Division, refusing to grant a temporary injunction to the petitioners. :2: 3. The case of the petitioners in the suit filed by them, is that they are the tenants of the suit property i.e. bunglow and they are in possession of the same. The suit property is owned by one Janani Devi Temple. The original Vahiwatdars i.e. Mahadeo Krishna Parte and Babaji Dnyanu Parte handed over the suit property to one Atmaram Salagare Salagate in the year 1922 vide the registered lease deed for a period of 99 years. Salagare was to construct a bunglow on the said property and pay rent to the Vahiwatdars. Thereafter there were a series of transactions as set out in the plaint, ending with the transaction dated 3-2-2007 between Homai Batliwala @ Homai Peer Bhoy with the present respondents/original defendants. 4. The Learned Counsel for the Petitioners submitted that there were restrictions in the original lease deed and in particular regarding the use of the bunglow by Hindus or Parsis only and that the present respondent No.1 is Muslim and Respondent No.2 is a foreign national and this would amount to breach of the lease condition. The learned Counsel for the petitioners further submitted that all the transactions after the original lease deed are not :3: binding upon the petitioners, the transactions are not in accordance with the law as the permission of the Government has not been obtained. The learned Counsel for the Petitioners has drawn my attention to para 16 of the impugned order and submitted that the Appellate Court has come to the conclusion that "prima facie" case has been made out. He has further referred to use of the word "ad-interim" instead of "interim" in the impugned order. According to him the Court has not applied its mind and has mis-applied the facts and has therefore refused to grant injunction as prayed for. 5. The learned Counsel for the Respondents on the other hand has drawn my attention to the prayer in the plaint and submitted that there is no prayers for declaration and only the last transaction wherein the present Respondents are parties has been challenged and the earlier transactions have not been challenged by the petitioners. He submitted that the petitioners are not in possession of the suit premises and therefore the question of granting them any relief to protect their possession does not arise. The learned Counsel for the respondents has :4: relied upon the case of Sri Dasnam Naga Sanyasi V/s Allahabad Development Authroity, Allahabad, reported in AIR 1995 All 418, wherein it is held that no relief of injunction can be granted unless the declaration of title is sought. It is further held in the said case that where the possession of the plaintiff is doubtful, no injunction should be granted. The learned Counsel for the Respondents also placed on record a copy of the deed dated 7th June, 1960 wherein the restriction regarding right of lessee to let out the bunglow constructed on the premises to Hindu or Parsis has been relaxed. He, therefore, submitted that the contention of the learned Counsel for the Petitioner regarding restriction in so far as the use of the bunglow by Hindus or Parsis alone does not remain. He has further placed on record the 2 Exchange Deeds of 1971 to show that the possession of the Premises in question was not with the petitioners. 6. I have considered the rival contentions of the parties and perused the material on record, including the impugned order. Pertinently the petitioner No.1 is one of the signatories to the exchange deeds of :5: 1971, which fact is not disclosed by the petitioners. The deed of 1960, whereby the restriction regarding the use of the suit bunglow being relaxed is also not disclosed by the petitioners. The trial Court has considered the material on record and come to the conclusion that the petitioners have suppressed material facts and have not come to the Court with clean hands. Both the Courts below have considered the case of the petitioners and arrived at a prima facie finding that the petitioners have not been able to prove possession of the suit property by them. No case of possession of the suit property by the petitioners has been made out by the learned Counsel for the petitioners before me also. In so far as the title of the property is concerned, the same will have to be decided at the time of trial of the suit after recording evidence. The learned Counsel for the petitioners has relied upon the use of the words "prima facie case" and "ad interim" in the impugned order and submitted that the Appellate Court has not considered the case in proper perspective and that the matter may be remanded back to the Appellate Court. In my view, the petitioners cannot take advantage of some bonafide mistake in the impugned :6: order and the impugned order has to be read as a whole. Both the Courts have come to the conclusion that no prima facie case is made out and the balance of convenience is in favour of the respondents and that the respondents would suffer irreparable loss if reliefs as prayed are granted. 7. I am in agreement with the findings arrived at by both the Courts below and the prayer for injunction has been rightly rejected. No case for interference has been made out to exercise writ jurisdiction of this Court under Article 227 of the Constitution of India. The petition is dismissed. Rule discharged. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)