1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6707/2009 Nabisab s/o Karbalasha Shaikh Age 80 yrs, Occ-Agri R/o Hippalgaon Tq. Nilanga Dist.Latur. .. PETITIONER VERSUS Sharafoddin s/o Channasab Shaikh Age 45 years, Occ-Agril R/o Hippalgaon Tq. Nilanga Dist.Latur. .. RESPONDENT .... Shri N.D.Kendre,Adv.for petitioner. Shri H.V.Patil(Talegaonkar),Adv.for Respondent. .... CORAM : R.K.DESHPANDE,J. DATE : 27/7/2010. ORAL JUDGMENT: 1] This Writ Petition challenges the order dated 19/8/2009 passed below Exh.161 by the II Joint Civil Judge, Junior 2 Division, Nilanga in Regular Civil Suit No.103/04 filed by the present petitioner/plaintiff. The petitioner had filed application Exh.161 for the relief which is reproduced below : “4. Police aid for any 3 days as per the convenience of the police and the court may be given to pltff. to carry on the needed agricultural work in the suit land Gat No.107 area 1 H. 1 R. bounded by East : Land of Chand Husen, West : Road, South : D.N.Shelke, North : Maheboob Maulla situate of village Hippalgaon Ta. S.A. Pal.” 2] The trial Court has passed an order granting police protection as sought for by the petitioner/plaintiff. However, in para 4 of the order, it has been made clear that in respect of Survey No.39 admeasuring 5 Acres and 2 Gunthas, the grant of police aid, shall not be against the brothers of the defendants viz.Mithu and Rajab. 3] Though in the Writ Petition, it is prayed that the order dated 19/8/2009 passed below Exh.161 in Regular Civil 103/04 be quashed and set aside, the learned counsel for the petitioner submits that he has restricts his challenge only to Clause No.4 of the order dated 19/8/2009 passed below Exh. 161. 3 4] Notice in this matter was issued on 9/10/2010. Shri H.V.Patil, the learned counsel appeared for the respondent. The learned counsels for the parties agree that the Petition can be finally disposed of at the stage of admission. Hence Rule. Rule made returnable forthwith. By consent of the learned counsels for the parties, Petition is heard finally. 5] The learned counsel for the petitioner has urged that the relief for grant of police aid claimed in the application below Exh.161 was restricted only in respect of protection of his possession over Gat No.107 admeasuring 1 Hectare and 1 Aar as is prescribed in the prayer clause no.4 which is reproduced above. However, while granting the relief by an order 19/8/2009, the trial Court has made observations in para 4 of the operative part of the order that the police aid shall not be extended to Survey No.39 admeasuring 5 Acres and 2 Gunthas against the brothers of the defendants viz. Mitthu and Rajab. The learned counsel submits that this was not the relief asked for in the application filed by the petitioner and there was no justification for the trial Court to pass any order in respect of Survey No.39. Hence, he submits that the trial Court has exceeded its jurisdiction in passing such an order. 6] Shri Patil, the learned counsel for the respondent original defendent has urged that : 4 (i) That the Petition has become infructuous as the police aid asked for was only for a period of 3 days, which period has already expired. (ii) The petitioner/plaintiff has suppressed material fact that on earlier occasion, application Exh. 129 was made by the petitioner for providing police protection, which was decided by the trial Court on 10/10/2008 allowing the said application and granting police protection as sought for. It was also made clear in that order that the police aid provided was not operating against brothers of the defendant viz. Mitthu and Rajab. The said order has not been challenged and the petitioner/plaintiff has accepted the same. (iii) In Regular Civil Suit No.103/04, Mitthu and Rajab the brothers of the defendant are not parties and the injunction granted by the trial Court restraining the defendants from disturbing the possession of the petitioner/plaintiff over the properties included in Schedule A of the plaint was not operating against his brothers Mitthu and Rajab. (iv) That the appellate Court while considering Miscellaneous Civil Appeal No.7/2008 challenging the order of injunction passed by the trial Court against the defendants in this Suit has observed in para 8 of its judgment that the 5 brothers of the defendants viz. Mitthu and Rajab may be in possession of the suit lands but no orders are passed against them restraining them from obstructing the possession of the plaintiff. (v) That the plaintiff is trying to disturb the possession of the brothers of the defendant viz. Mitthu and Rajab under the garb of the police protection which is sought for by the order impugned in this Petition. (vi) The learned counsel further relied upon the decision reported in 2004 (1) Mh.L.J. 1058 in the case of Nirabai J. Patil V/s Narayan D. Patil in support of his submission that the grant of police aid is an extreme step and therefore, order for grant of police help or police assistance cannot be made unless the Court is fully convinced about the existence of grave emergency such as apprehension of violence by the persons against whom the order has been passed. The learned counsel submits that in view of this judgment, the appellate Court ought not to have passed an order granting police protection. 7] The last point urged by the learned counsel for the respondent/defendant, that police aid cannot be granted unless the Court is fully convinced about the existence of grave emergency, cannot be considered as the police aid has 6 already been granted by an impugned order dated 19/8/2009 on the application Exh.161 to the petitioner, and it is not challenged by the defendants. In view of this, the question of applying the judgment cited by the learned counsel for the defendant/respondent, does not arise. 8] The application filed by the petitioner/plaintiff at Exh.161 is for grant of police protection only in respect of Gat no.107 having area of 1 Hectare and 1 Aar. The trial Court could not have therefore, made any observations in respect of the property in respect of which no police protection was asked for in the application at Exh.161. Hence, passing of an order in para 4 of the operative part of the order is in excess of jurisdiction. The same cannot therefore, be sustained. 9] So far as the contention of the learned counsel for the respondent that the petition has become infructuous as the period of 3 days for which the police protection was granted has expired is concerned, it is apparent that the instant Writ Petition is pending and there is no time limit prescribed in the order of the trial Court as to for which specific 3 days the police protection is to be provided. Hence, the contention that the Petition has become infructuous cannot be accepted. 10] The point of suppression of material fact is urged on the basis of the order dated 10/10/2008 passed below Exh.129 7 which was also an application for providing police aid, the said order has been implemented. No complaint in respect of that was made by the defendant. Non disclosure of the order or making of such an application cannot therefore, be said to be a suppression of material fact. On the contrary, such an order would support the contention that such police protection was provided on earlier occasion also. Hence the objection cannot be sustained. 11] It is urged by the learned counsel for respondent that the injunction has been granted only against defendant and there is no injunction granted against Mitthu and Rajab brothers of the defendant. However, the defendant against whom such injunction is operating cannot make such grievance. As a matter of fact, while passing an order of injunction below Exh. 47 on 7/2/2008, the trial Court has observed in categorical terms that the plaintiff is found to be in possession of the property described in Schedule “A” of the plaint. The appellate Court although maintained the order of the trial Court and did not disturb the finding of fact that the petitioner/plaintiff is in possession of the properties described in Schedule “A” of the plaint, has observed that the brothers of the defendant viz. Mitthu and Rajab may be in possession of the suit lands but no order is passed against them to restrain them from disturbing the possession of the plaintiff. This observation has been made on the plea raised by the defendant that his brothers are 8 in possession of the suit property and the same has been rejected. However, it is not a finding that the brothers of the defendant viz. Mitthu and Rajab were in fact in possession of the suit property. On the contrary, it is informed that both the brothers of the defendants viz. Mitthu and Rajab have filed Regular Civil Suit No.127/2001 for partition in which an order of injunction was claimed against present petitioner/plaintiff and the same has been rejected by the trial Court and the Appeal against that is pending. In view of this, the observation by the appellate Court in its order regarding so called possession of the brothers of the defendant is of no help to the respondent/defendant. 12] Lastly, the learned counsel for the respondent has urged that under the garb of police protection, the petitioner/plaintiff is trying to disturb the possession of the defendant over the suit property. However, this contention also cannot be accepted for the reason that the petitioner plaintiff is already found in possession of the suit property in Regular Civil Suit No. 103/2004 and the application for injunction made by the brothers of the defendant in Regular Civil Suit No.127/2001 has already been rejected. Be that as it may, the trial Court was not right in making any observations as contained in Para 4 of the operative part of the order dated 19/8/2009. 13] In the result, the instant Writ Petition is partly allowed by 9 setting aside Clause 4 in the operative part of the order dated 19/8/2009 passed by the learned II Joint Civil Judge, Junior Division, Nilanga below Exh.161 in Regular Civil Suit No. 103/2004. Rule is made absolute in these terms. No order as to costs. However, it is made clear that none of the observations made in the order shall come in the way of the petitioner either on the merits of controversy in the Suit or in the Suit filed by brothers of the defendants, as it is only on prima facie assessment of the case that such observations are made. [R. K. DESHPANDE, J.] umg/wp6707-09