1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Appeal against Order No.64 of 2010 (Ramdas Panjabrao Deshmukh v. Smt. Laxmibai wd/o Punjabrao Deshmukh and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri P.S. Lambat, Advocate for Appellant. Shri Bhishma Kinger and Shri S.V. Sohoni, Advocates for Respondent Nos.2 and 3. Coram : R.K. Deshpande, J. Dated : 25 th October, 2010 1. This appeal challenges the order dated 10-3-2010 passed by the learned 3 rd Joint Civil Judge, Senior Division, Wardha, allowing the application Exhibit 45 filed by defendant Nos.2 and 3 in Special Civil Suit No.172 of 2006. The operative part of the order is reproduced below : “(i) The application is partly allowed. (ii) The plaintiff and the defendant no.4 themselves and also their agents, servants or family members are hereby temporarily restrained from interfering with and disturbing the possession of the defendant nos.2 & 3 over the suit-properties i.e. Field-survey no.6 and 26 of mouza Algaon, Tah. Seloo, Distt. Wardha and also from 2 creating hurdles in conducting agricultural operation by the defendant nos.2 & 3 till the final decision of the present suit. (iii) In the peculiar circumstances, there shall be no order as to costs.” 2. Shri Lambat, the learned counsel appearing for the appellant/plaintiff, has urged that under the provisions of Order 39, Rule 1 of the Code of Civil Procedure, the Civil Court cannot pass an order of injunction in favour of defendant Nos.2 and 3 and against the plaintiff. He submits that the suit filed by the appellant/plaintiff is for declaration, injunction and cancellation of the sale-deed. There is no counter-claim filed by the defendants and the application for grant of temporary injunction was not maintainable. He relies upon the judgment of this Court in Nanasaheb v. Dattu and others, reported in AIR 1992 Bombay 24. 3. It is not in dispute that the plaintiff had filed the application for temporary injunction restraining the defendants from interfering with the possession of the plaintiff in respect of the suit property. The said application was rejected by the Trial Court and the appeal against the rejection of the said application preferred by the plaintiff was dismissed. The order of rejection of the application filed by the plaintiff has attained the finality. Defendant Nos.2 and 3 has moved the application Exhibit 45 for grant of temporary injunction restraining the plaintiff and defendant No.4 from interfering with and disturbing the possession of defendant Nos.2 and 3 over the suit property and also from creating hurdles in conducting agricultural operation by 3 defendant Nos.2 and 3 till the final decision of the suit. The Trial Court has recorded a finding that defendant Nos.2 and 3 has made out a prima facie case for grant of injunction. It has further recorded a finding that defendant Nos.2 and 3 are in possession of the suit property. The balance of convenience has been held in favour of the defendants and hence in order to protect the interest of the defendants, an order of injunction has been passed. These findings are not assailed in the present appeal. 4. So far as the question of jurisdiction of the Trial Court to pass an order of injunction is concerned, the judgment of this Court in Nanasaheb’s case, cited supra, which has been relied upon by the learned counsel for the appellant/plaintiff, is required to be seen. It has been held in the said judgment that such a power is available to the Trial Court under Order 39, Rule 1(a) of the Civil Procedure Code. The injunction claimed and granted relates to the property, which is the subject of the suit and hence it cannot be said that the application was not maintainable or that the Trial Court has no jurisdiction to pass an order of injunction in favour of the defendants. Thus, the said judgment does not support the case of the appellant/plaintiff. 5. Shri Lambat has further urged that the appellant/plaintiff is in possession of the suit property and the same has been agreed by defendant Nos.2 and 3 in their written statement. He has pointed out that in para 15 of the written statement, it has been stated by defendant Nos.2 and 3 as under : “... The plaintiff had also cultivated the suit fields on Makta basis prior to 2002, but the defendant No.1 stopped giving the suit fields on Makta basis to the 4 plaintiff due to filing of the civil suit No.11/2002 and she never allowed the plaintiff to cultivate the suit fields till this date.” 6. Bare perusal of the aforesaid statement does not reveal that it is an admission on the part of defendant Nos.2 and 3 that the plaintiff was in possession of the suit property at the time of filing of the suit. Be that as it may, the application of the plaintiff for grant of temporary injunction has been rejected, recording a finding that the plaintiff has failed to establish his possession over the suit property. 7. In view of the above, no fault can be found with the order passed by the Trial Court. 8. The appeal is, therefore, dismissed. Judge pdl