dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.2033 OF 2008 PETITION NO.2033 OF 2008 PETITION NO.2033 OF 2008 Shashikant Jagannath Powar Petitioner Vs. Vimal Baburao Kurhade & ors. Respondents Mr.Amit Borkar for the Petitioner. Mr.N.V.Bandiwadekar for the Respondents 1, 2, 6 and 7. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 24th November, 2008. : 24th November, 2008. : 24th November, 2008. P.C. P.C. P.C. The petitioner/plaintiff has challenged the concurrent findings and resulted orders passed by the courts below, whereby his application for injunction is rejected by holding that there is no prima facie case; the balance of convenience lies in favour of defendant and the plaintiff will not suffer irreparable loss. 2. The learned counsel for the petitioner basically contended that both the courts failed to consider other prayers of his injunction application with regard to third party rights and injunction not allowing the defendants to take out any material from the land. This submission has no force as rightly ( 2 ) contended by the learned counsel for the respondent, who has pointed out that for the same land, the petitioner has filed a Suit against Baburao, father of the present petitioner and there also the same relief was claimed in the year 2006 which was not granted. The contention that that was based upon the earlier agreement of 27.08.2005 and the present Suit is based upon subsequent agreement has no force. Both these grounds were available when earlier Suit was filed. 3. The present case, admittedly, is only for injunction. There is no declaration of any kind sought by the petitioner though the land is same. Both the courts came to the clear conclusion that the respondents are in possession and/or at least that plaintiff is not in possession of the property. The Suit is still pending. There is no question of deciding any title at this stage. Therefore, unless a right as claimed by the petitioners are decided no relief as prayed in the injunction application can be granted at the stage of prima facie case. 4. Further both the courts have rightly considered the admission that the suit property was in possession of Baburao. The respondents are the legal heirs of ( 3 ) the said Baburao. 5. The petitioner having once invoked and filed such application earlier and as not got the order, it is difficult to accept the case now to restrain or pass any order against the respondents who have obtained permission for excavating stones subject to the licence. The Suit for specific performance agreement to sell is also pending. 6. Therefore, having considered the material on record, both the courts by reasoned order have rightly refused to entertain all the prayers made in the application. The order is well within the frame work of law and the record. There is no perversity. The petition is therefore dismissed. No costs. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)