( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1387 OF 2010 Bhaskarrao s/o Gopalrao Deshmukh and others. PETITIONERS VERSUS Subhash s/o Sakharam Deshmukh and others. RESPONDENTS .... Mr. M.M. Patil (Beedkar), advocate for the petitioners. Smt. V.B. Deshmukh, advocate holding for Mr. V.D. Salunke, advocate for the respondents No. 1 to 4. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 10th August, 2010] PER COURT : 1. Heard learned counsel. 2. The petition is filed by the original plaintiffs. Their application for ad-interim injunction filed in the suit (R.C.S. No. 174/2006) came to be dismissed. The dismissal of the application was challenged by them by filing Misc. Civil Appeal No. 44/2009. The said appeal also came to be dismissed. ( 2 ) 3. Counsel for the petitioners submits that both the Courts below have committed patent error while refusing to grant the interim relief in as much as admittedly, the respondents are running bricks kiln in the premises in the suit land and that excavation of the soil is likely to cause permanent damage to the land. He would submit that the continuous activity to run the bricks kiln is likely to permanently impair fertility of the land. He contended that both the Courts below rendered perverse findings as regards the unlikelihood of damage to the land in question. 4. The petitioners’ case before the trial Court is that the suit land consisting of 2 Acres and 19 Ares, out of total area of 4 Acres 37 Ares from Survey No. 21/1 is owned by them. They submitted that entire Survey No. 21 was allotted to their predecessor-in-title, namely, Vithalrao whereas Survey No. 22 was allotted to Venkatrao Deshmukh. According to them, the respondents are trying to remove the soil from the suit land which is allegedly encroached. They contended that the respondents are likely to create third party interest and as such, clamping of injunction on the latter is necessary. 5. Both the Courts have rendered concurrent findings of ( 3 ) facts as regards the absence of present danger to the suit land due to running of the bricks kiln. The plaintiffs’ suit is for possession of the suit land consisting of 2 Acres 19 Gunthas as indicated in the sketch filed by them. There is no explanation as regards the area covered under the bricks kiln. There is no documentary evidence regarding the alleged exchange of the land as between the forefathers of the parties. The suit land is shown against names of the forefathers of the respondents since long many years. It is difficult to comprehend as to how such a big chunk of the land comprising of 2 Acres 19 Gunthas could be encroached by the respondents and as to how the encroachment was not noticed by the petitioners at the earliest when the process had begum. There is hardly any evidence to infer that the suit land is being subjected to permanent damage. It cannot be overlooked that the respondents have set up counter claim of their ownership on strength of the earlier partition and the transactions between the forefathers of the parties. It does not appear that the respondents are trying to cause permanent damage to the suit land. They have made a statement that they will not create third party interest during pendency of the litigation. In this view of the matter, the concurrent findings of the Courts below need not be interfered with since ( 4 ) the orders are rendered in the exercise of discretionary powers. The observations of the Courts below regarding the claim of the petitioners being outside the relevant provisions of the Limitation Act are obviously required to be overlooked while deciding the suit on merits. The trial Court shall not be influenced by any of the observations while deciding the matter on and shall independently consider the relevant issues involved in the suit. With these observations, the petition is disposed of. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp1387-10