( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION USJ SECOND APPEAL NO.145 OF 2009 SECOND APPEAL NO.145 OF 2009 SECOND APPEAL NO.145 OF 2009 Shri Priyamedh Rushidev Shastri and Ors. ..Appellants V/s. Shri Vijay Rushidev Shastri ..Respondent ...... Mr.A.Y. Sakhare i/by M/s. YKS Legal for the appellants Mr. M.M. Sathaye for the respondent ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 20th April, 2009 DATED : 20th April, 2009 DATED : 20th April, 2009 P.C.: P.C.: P.C.: 1. The plaintiff instituted a suit for declaration and for an injunction restraining the appellants from interfering with the possession of the respondent. Such a suit came to be filed in the Court of Joint Civil Judge, Junion Division, Nashik being Regular Civil Suit No.193 of 2000. The said suit came to be dismissed by Judgment and decree dated 13th January, 2008. The respondent challenged the said judgment and decree in the District Court by filing Civil Appeal No.36 of 2006. The said appeal was heard and decided by learned District Judge-5, Nashik and by judgment and decree dated 8th December, 2008, the learned District Judge-5 granted an order of injunction restraining the present appellants i.e. original defendants from intereferring with the possession of the respondent from the suit property described specifically in the suit. This judgment and ( 2 ) decree dated 8th December, 2008 is challenged in this Second Appeal. 2. I have heard learned Senior Counsel Mr.Sakhare for the appellants and learned advocate Mr.M.M.Sathaye for the respondent. Perusal of the impugned judgment at paragraph 13 and the relevant portion i.e. "In view of this, the plaintiff is entitled for grant of relief of permanent injunction till he is dispossessed by following procedure established by law" is clear indicative of the fact that the learned District Judge-5 was not inclined to consider the matter on merits in regards to the rights of the respective parties and an injunction was granted solely to protect the physical possession of the respondent. In respect of this, learned Senior Counsel Mr.Sakhare appearing on behalf of the appellants took me thorugh the points for determination which came to be framed by the District Judge. The learned District Judge has given an affirmative finding in regard to the question whether the respondent has proved that he is only the legal heir of R.T. Shastri who had succeeded to the tenancy right of the tenancy of the suit property. 3. Learned Senior Counsel Mr.Sakhare had also taken me through the other part of the judgment to say that the learned District Judge has given observations ( 3 ) on merits as regards the rights of the respondent while passing the final order. 4. I am inclined to dispose of this Second Appeal by making a clarification that the injunction shall operate against the present appellants solely to see that the possession of the respondent in regard to the suit property is protected and if the appellants are interested in seeking possession of the suit property, they are free to file a substantive suit for recovery of the possession of the suit property from the respondent and it is at that stage all questions as to who is the owner of the suit property or whether the present respondent has succeeded to tenancy rights shall be considered and all observations passed by learned District Judge in the impugned judgment and decree dated 8th December, 2008 shall not operate against the appellants. If at all, the suit is filed the same shall be considered on the merits of the entire matter. In my view, this arrangment would meet the ends of justice keeping in view the fact that the learned District Judge wanted to protect the possession of the respondent at the stage of disposing of the appeal. Hence, the following order is passed:- ORDER ORDER ORDER ( 4 ) . No interference is required in the impugned judgment and order dated 8th December, 2008 passed by District Judge-5, Nashik to the extent of clauses No.2 and 3 of the impugned judgment. It is clarified that if at all the appellants institute a suit for possession of the suit property, the said suit shall be considered on merits and any observation made by the learned District Judge in this impugned judgment and decree dated 8th December, 2008 shall not operate against the appellants. Both the parties are free to place their respective contentions before the learned Judge before whom the suit will be filed. All questions regarding the ownership of the property or questions regarding succeeding to the tenancy rights shall be considreed in the light of the factual facts and legal position then prevailing. . In the facts and circumstances of the case, there shall be no order as to costs. In view of the above, nothing is survives in the Civil Application is disposed of with no order as to costs. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)