1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 6124 OF 2009 --- 1. Nanasaheb s/o Bhujangrao Dhavle, age 60 years, Occ. Agriculture. 2. Avinash s/o Nanasaheb Dhavle, age 32 years, Occ. Agriculture. 3. Vinod s/o Nanasaheb Dhavle, age 27 years, Occ. Agriculture. All R/o Tondoli, Tq. Jafrabad, Dist. Jalna. PETITIONERS. (Orig. Defts. No.1 to 3 ) V E R S U S 1. Bapurao s/o Gopalrao Dhavle, age 74 years, Occ. Agriculture. 2. Bhikabai w/o Bapurao Dhavle, age 69 years, Occ. Agriculture. Both r/o Tondoli, Tq. Jafrabad. District. Jalna. RESPONDENTS. (Orig. plaintiff No.1 and 2) Shri S.K.Shinde, Advocate for the petitioners. Shri D.R.Irale Patil, Advocate for the respondents. CORAM : S. B. DESHMUKH, J. DATE : 1ST FEBRUARY, 2010. PER COURT :- 1. Heard learned counsel for the respective parties. 2- Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 3- These petitioners are defendants in R.C.S. No.129/2007 and 2 respondents in writ petition are plaintiffs. Plaintiffs have filed R.C.S.No. 129/2007 for perpetual injunction pertaining to their own land which was the subject matter of suit. This suit was followed by an application for temporary injunction. This application, after hearing parties, was allowed by the trial court. Copy of the order passed by the trial court is on record. Trial court by order passed on 03.05.2008 allowed temporary injunction application filed by the plaintiff, defendants are restrained from taking water and cultivating the suit property. I am not reproducing that order. This order passed by trial court was challenged by filing Misc. Civil Appeal No.34/2008. First Appellate Court, after hearing the parties, dismissed said appeal by the judgment and order passed on May 2, 2009. This order passed by the First Appellate Court in Misc. Civil Appeal No.34/2008 is the subject matter of this writ petition. 4- Mr. Shinde, the learned counsel for the petitioners submit that area of land is reduced. According to him, land owned by the defendants is around 12 acre 29 gunthas. For this proposition, he pointed out annexure ‘B’ (page 25). He further submits that holding of the petitioners, as mentioned in annexure B to the tune 12.29 gunthas was continued till the year 1970. For this proposition he points annexure ‘C’ (page 26). There, name of one of the defendant No.1 i.e. Nanasaheb is mentioned. Area under cultivation is shown as 12 Acres 21 gunthas. Counsel for the petitioners further points out another 7/12 extract page 27 on record. This 7/12 extract is of land gat No.109 admeasuring 3 H 89 Aar, owned by Nanasaheb Bhujangrao Dhavale defendant No.1 / present petitioner No.1. Area is mentioned as 3 H 89 R. Grievance is that this extract prepared by revenue authority after application/implementation of the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, shows less land (herein after referred to as ‘Act of 1947’). Thus in substance, after implementation of the said Act, 1947 area of 3 the land owned by the petitioners is reduced by 2 acres and some gunthas. According to counsel, disputed well is also situated in this area. Petitioners have filed application/appeal in view of the provisions of Act of 1947. Copy of the application is on record (page 49). Shri Shinde, learned counsel for the petitioners submits that order impugned in this writ petition is perverse. 5- Mr. D.R. Irale Patil, counsel for the respondents/original plaintiff supports the order passed by both the courts. 6- I have given anxious consideration to the submissions made by the counsel for the parties. Temporary injunction is a matter governed by Order 39 Rule 1, 2 of Code of Civil Procedure. Suit in the case on hand is for perpetual injunction. Courts, while exercising power under Order 39, Rule 1 and 2 are expected to consider triple principle i.e. primafacie case, blanace of convenience and irreparable injuries. Grievance of reduction in area on account of illegal or wrong application of Act of 1947 is a matter which can be taken care by the authorities under Act. In this view of the matter, in my view, there is no perversity in the order passed by the trial court, subsequently confirmed by the first appellate Court. 7- In my view order impugned does not warrant interference in exercise of extra ordinary jurisdiction. Writ petition stands dismissed. No order as to costs. 8- Rule discharged. 9- Ad-interim relief, if any, stands vacated. ( S. B. DESHMUKH ) JUDGE. aaa/6124.09 * * *