:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1315 OF 2008 Kamlakar Haribhau Naik & Ors. ..Petitioners Vs. Sadanand Haribhau Naik and ors. ..Respondents Mr. A.G. Damle with Mr. Sanjay S. Gawde for petitioners. Mr. R.P. Joshi for respondent no.1. CORAM: CORAM: CORAM: B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. Date Date Date : April 11, 2008. : April 11, 2008. : April 11, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Damale the learned counsel for the petitioners, who are defendants in RCS No. 184 of 2007 filed by the present respondent no.1. There is no doubt that the plaintiff and the defendant nos.1 to 4 are the brothers and defendant no.5 is their mother. The plot of land admeasuring 1648 sq.mtrs. out of Survey No. 95, Hissa No.4/1 situated at village Vatar, Taluka Vasai, District Thane has been given on lease by all the family members of the plaintiff, as the :2: said plot is a joint family property. It appears from 1974, plaintiff used to look after the family business of running and operating Rice Mill at village Umbargothan and subsequently they thought of putting up of Ice factory on the suit plot. The lease agreement between the parties, amongst other conditions, also states that the lessee shall permit the lessor or their duly authorised agent or agents to enter the premises at all convenient times for periodical inspection of the same, except when any show or function is being held thereon. On 22/1/1985 defendant nos.1 to 5 executed a Power of Attorney in favour of the plaintiff. The plaintiff claims to be the sole proprietor of Swastik Ice factory located on the suit plot. The substantial reliefs prayed for in the suit read as under:- "(a) that the Hon’ble Court be pleased to declare that the plaintiff is sole owner of the business by name ‘Swastik Ice Factory’ and the Factory building bearing Vatar Grampanchayat No.321 situated on the suit plot of land out Survey No.75(275), Hissa No.4/1 of village Vatar, Taluka Vasi, District Thane and :3: the Plant, machinery, equipments therein is of the ownership of the plaintiff and that the plaintiff has leasehold rights, title and interest over suit plot of land. (b) that the Hon’ble Court be pleased to issue order and Injunction in the nature of Perpetual Injunction against the Defendant No.1 to No.5, their agents, servants, contractors, employees or any persons claiming from and under them from entering into suit property i.e. suit plot of land and factory building of Swastik Ice Factory or any part thereof." 2. The plaintiff had filed an application for temporary injunction at Exh.5 but the same was rejected by the learned Civil Judge, J.D. at Vasai on 26/9/2007. The plaintiff, therefore, approached the Lower Appellate Court in Misc. Civil Appeal No. 119 of 2007 and the said appeal has been allowed by the impugned Judgment and Order dated 3/1/2008 rendered by the learned District Judge -I at Vasai. :4: 3. Mr. Damale the learned counsel for the petitioners submitted that the trial court by a well reasoned order thought it fit not to grant any temporary injunction and more so when it recorded a finding that the suit property was a joint property, the petitioners also had some concern and involvement in the business of Swastik Ice factory and there was no reason to believe that the plaintiff was a sole proprietor of the said factory. Mr. Damale also pointed out that the notice of termination of lease agreement was already issued and, therefore, he stated that the Lower Appellate Court fell in manifest errors in reversing the trial court’s order. 4. There is no doubt that the defendant nos.1 to 5 executed registered lease dated 10/7/1989 in favour of the plaintiff regarding the suit plot for a period of 30 years and they claimed that the notice dated 15/11/2005 terminated the lease agreement. The said notice was replied by the plaintiff on 17/5/2006. The plaintiff has invested and put up a factory known as Swastik Ice factory. Maharashtra State Finance Corporation granted a loan of Rs.7,25,000/- in the :5: year 1990 and Rs.1,00,000/- was sanctioned by the Development Corporation of Konkan, Mumbai. The plaintiff has brought on record income tax returns submitted on behalf of Swastik Ice factory as well as Gram Panchayat Assessment extract dated 16/12/2005, Certificate by Salex Tax Department, pass-book of Bank of Maharashtra. The Lower Appellate Court noted that there was no prima facie evidence that the defendants were either Partners or Directors of Swastik Ice Factory. On the contrary, the plaintiff appeared to be the sole proprietor of the said factory. It appears that the trial court considered the documents like the registration in favour of Swastik Ice Factory as a Small Scale Industry and the correspondence addressed to it and noted that it was not in the name of the plaintiff. Such a conclusion is ill-founded. The Lower Appellate Court rightly stepped in and considered all the record placed before the trial court and held that the plaintiff was solely responsible in running Swastik Ice Factory, but at the same time the defendants could not be estopped from entering the premises contrary to clause (a) of the Lease Deed and, therefore, it allowed the application at Exh.5 partly and to the extent of prayer clause (a) :6: and on the condition that the defendants will be allowed to enter the premises for periodical inspection of the same as per clause (l) of the Lease Deed dated 10/7/1989. The view taken by the Lower Appellate Court is a possible view and it cannot be termed as perverse or manifestly erroneous so as to cause interference under Article 227 of the Constitution. 5. Hence, the petition is rejected summarily. (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)