1 wp 5522.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5522 OF 2011 Channubai Vithal Kale .. Petitioner Versus Ramrao Annarao Kakade and others .. Respondents Shri P. F. Patani, Advocate for the Petitioner. Shri M. M. Joshi, Advocate for the Respondent No. 1. CORAM : S. V. GANGAPURWALA, J. DATE : 27TH JULY, 2011. PER COURT : . The present petitioner is the defendant No. 3. The present respondent No. 1 had filed suit for injunction restraining the defendants from interfering in his possession. Along with the suit the plaintiff also filed an application for temporary injunction. The Trial Court rejected the said application. Aggrieved thereby the plaintiff preferred an appeal before the District Court. The District Court allowed the appeal. The defendant No. 3 has assailed the said judgment and order in the present writ petition. 2 wp 5522.11 2. Shri Patani, the learned counsel for the petitioner strenuously contended that the Court below has not considered the basic concept governing the dispute. Dagadabai was original owner of the property. Said property was succeeded by the defendant No. 4/Bankat and the present petitioner being son and daughter of Dagadabai. The defendant Rajendra did not have any right, title or interest to deal with the said property, inter alia, the plaintiff cannot get any title pursuant to the sale deed dated 02 nd March, 2007. The learned counsel further contends that even if it is assumed that the defendant No. 1 sold the property to the plaintiff, still the only remedy available with them is to file a suit for partition. The simplicitor suit for injunction would not be tenable at all. The present petitioner is a co-owner of the property. In such circumstances, the plaintiff would not be entitled for any relief. For the said purpose, the learned counsel relies on the judgment of the Apex Court in a case of Ramdas Vs. Sitabai and others reported in AIR 2009 S.C. 2735. 03. The learned counsel further contends that there was overwhelming record to show that the present petitioner is in possession of the property, such as the panchanama carried out 3 wp 5522.11 by the Circle Inspector, the report submitted by the competent authority i. e. Block Development Officer to the Tahsildar and the statements of adjoining owners. All this record has been ignored by the learned Appellate Court on the ground that the defendant No. 1 is a member of Panchayat and he must have influenced the authority. The learned counsel as such, contends that the lower Appellate Court could not have clamped the injunction against the present petitioner who is in possession of the property. The learned counsel in the alternate contends that status quo was in operation during the pendency of the appeal and till today. As such, the said order be continued till the disposal of the suit and suit can be decided expeditiously. 4. Shri Joshi, the learned counsel for the respondent No. 1 supports the order passed by the learned lower Appellate Court. 5. At this stage of determination of an application U/O 39 Rule 1 and 2, only factum of possession is required to be considered and the arguments advanced regarding the share of the petitioner, the right of the plaintiff to file such suit can be considered at the time of final adjudication of the suit. Even a tress passer in settled possession is entitled for injunction 4 wp 5522.11 against a true owner and the said person cannot be dispossessed without the due process of law as is held by the Apex Court in a case of Rame Gowda (D) by LRs Vs. M. Varadappa Naidu (D) by LRs reported in (2004) 1 S.C.C. 769. 6. The revenue record right since 1989-90 shows the possession of defendant Nos. 1 and 4. The defendant No. 1 has executed the sale deed on the premise that the defendant No. 4 his father has partitioned the said property in favour of the defendant No. 1. Whether the alleged partition is legal or valid is not a subject matter of the controversy at this stage. The fact remains that since 1989-90 the name of defendant No. 1 appeared in the possession column of the relevant revenue record and after the sale deed was executed by the defendant No. 1 in favour of plaintiff, the name of the plaintiff appears in the ownership and possession column. The said entries at no point of time were assailed by the present petitioner and it is only when suit for injunction is filed by the plaintiff, the present petitioner has ventured to file the suit for partition and separate possession. The lower Appellate Court has taken into consideration all these facts. It also does not appear that the said panchanama or the report is prepared in presence of the original 5 wp 5522.11 plaintiff as is observed by the learned Appellate Court. The view taken by the lower Appellate Court is possible and plausible view. The writ petition cannot be entertained only on the ground that some other view may also be possible. 7. In the light of above, no case for interference is made out in supervisory jurisdiction of this Court under Article 227 of the Constitution of India. As such, the writ petition is dismissed, however, with no order as to costs. 8. Needless to state that, the observations made are prima facie in nature and the Trial Court shall decide the suit on its own merits as per the evidence adduced. [ S. V. GANGAPURWALA, J. ] bsb/July 11