1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR, NAGPUR. CIVIL APPLICATION NO. 1607 /2011 IN FIRST APPEAL NO. 1062 /2010 1) Vinod s/o Rajanna Narendulwar and another ...APPELLANTS (APPLICANTS) v e r s u s 1) The State Government of Maharashtra and another. ...RESPONDENTS …........................................................................................................................ Dr.Anjan De, Advocate for applicants/appellants Mr. S B Ahirkar, AGP for Respondent no.1 to 5 Mr M P Khajanchi, Adv.for Respondent No.6. …........................................................................................................................ CORAM: A.B. CHAUDHARI , J . DATED: 7th September, 2011 P. C. 1. This is an application seeking temporary injunction restraining the respondent no.6 from interfering with the possession of the applicant over the suit field during pendency of First Appeal No. 1062/2010. 2. In support of this application, Mr De, learned counsel for 2 the applicants/appellants vehemently argued the instant First Appeal No. 1062/2010 was admitted for final hearing on October 26,2010 and as a inevitable concomitant an order granting injunction ought to follow. He further argued that this Court had confirmed the stay order on 10th March 2011 that was passed by this Court earlier on 26th October, 2010 and that is another reason why injunction should be granted. He argued that during interlocutory proceedings earlier to the decision on merits by the trial Court on Application (Exh.5) and the Appellate and writ proceedings thereafter, the parties were directed to maintain status quo in relation to the suit property, there was an injunction in favour of the appellants and, therefore, the same state of affairs should be continued during pendency of the present First Appeal. He, then, invited my attention to the earlier interlocutory orders granting injunction. 3. Per contra, learned counsel for the respondents vehemently opposed the application and argued that the suit now has been decided on merits after the evidence was led by the parties including the evidence of the Government surveyor and all other witnesses. The suit itself was decided on the basis of oral as well as documentary evidence by the trial Court and after witnesses were put 3 to the test of cross-examination. He, then, argued that the earlier stay order granted by this Court on 26th October, 2010 that was confirmed on 10th March 2011 was of no relevance because there could not be any stay of the judgment and decree by which the suit itself was dismissed completely and, therefore, the order confirming the stay did not lead to any injunction which is now being sought to be claimed by the appellants. The counsel then argued that Survey No. 70 of Mouza Tambadi from which some land was allotted to the ex- serviceman i.e. respondent no.6 –Vijay Awari, belongs to the Government and consists of around 40 hectares of land. The land purchased by the appellants is from Survey No. 144 which he claimed to have purchased form Vitthal from village Dhoptala and not Tambadi. These two Survey Nos. of different villages are distinctly different but still it is the case of the appellants that some part of Survey no. 70 which was allotted to the respondent no.6 was also purchased by the appellants and, therefore he is in possession and has prayed for injunction against the respondent no.6. The present respondent no.6 being an ex-serviceman and the land from Survey No.70 being granted to him as ex-serviceman, no further injustice should be done to respondent no.6 by allowing injunction application. 4. I have heard learned counsel for the respective parties at 4 length. I have also gone through the records and proceedings. At the outset, it is not in dispute that Survey No.70 of Mouza Tambadi is of around 40 hectares and the entire Survey Number belongs to Government of Maharashtra. This Survey No.70 has nothing to do with Survey No.144 though it appears that these two Survey numbers are adjacent on the boundaries of villages Dhoptala and Tambadi. It is also not in dispute that out of Survey No. 70 a strip of land was given to the respondent no. 6 as an ex-serviceman by the Government for his survival and sustenance and he was put in possession by the Government. Survey No.144 which is said to have been purchased by the appellants is an independent survey in different Mouza. It is thus, clear that the appellants does and cannot claim to have purchased a single inch of land from survey No. 70 belonging to the Government. Despite this position, the appellants' case is that they have purchased, while purchasing survey no.144, some portion from Survey No.70, the said portion being the field allotted to respondent no.6. Admittedly, even a single inch of land from Survey No. 70 is not mentioned in the sale deed obtained by appellants while purchasing Survey No. 144 of Mouza Dhoptala. Thus from these facts, it is crystal clear that this is a an open and shut case, in the sense that the appellants cannot try to make an attempt to contend that they have purchased a single inch 5 of land from Survey No. 70 belonging to the Government when the portion which is said to be in dispute was admittedly allotted to the respondent no.6 and respondent no.6 has never sold the said property to the appellants. This is how the trial Court has discussed the entire oral and documentary evidence and came to the conclusion that appellants were neither the owners nor in possession of the portion of Government land Survey No. 70 allotted to the ex-serviceman, the defendant no.6. 5. The submission that this Court should refer to the interlocutory orders which were made during the pendency of the suit or even observations made in the interlocutory orders by this Court in writ proceeding does not appeal to me. A full-fledged trial was held, the evidence was recorded, oral and documentary evidence was produced and proved by the parties and the witnesses went through the test of cross-examination. To sum up, when the suit was tried on merits, there is no reason why this Court should look into the observations or reasons given by the Courts at the interlocutory stage. Instead I have preferred to go through the impugned judgment and evidence referred before me by the appellants that was tendered in the trial Court. It is, therefore, not possible for this Court prima facie to 6 see any title or possession or any portion of Survey No.70 much less the one allotted to defendant no.6. The respondent no.6 who is an ex- serviceman, cannot be treated in the manner sought to be treated by the appellants. The appellants should be happy with their possession on Survey No.144 which they have purchased but they cannot try to encroach on any portion from Survey No.70. In that view of the matter, I am satisfied that no prima facie case is made out for grant of temporary injunction against the respondent no.6 or the other respondents. If at all the appellants wanted to say that Government of Maharashtra had encroached in Survey No.144 from the boundary of Survey No.70, a dispute would lay elsewhere and not in the Civil Court. In that view of the matter, I make the following order : ORDER: Civil Application is rejected. Cost to follow the cause. JUDGE sahare