wp10750.10 1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD _____________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________________ WRIT PETITION NO. 10750 OF 2010 PRALHAD SONAJI PATIL MAHALE VERSUS LOTAN DHANAJI MOHALE AND ORS ... Advocate for Petitioner(s) : Mr. Hiwrekar S.D. Advocate for Respondent(s) : Mr. Gholap for R/ 1 to 17 ... CORAM : S.S. SHINDE, J. Dated: September 05, 2011 ... This writ petition has been filed challenging the order passed by the District Judge, Jalgaon in MCA No. 47/2010 on 6.8.2010 thereby confirming the order of the CJJD, Jamner in RCS NO.35/2010 on 17th June, 2010. 2 The learned Counsel for the petitioner submits that it is not in dispute that the petitioner has some share in the suit property. It is submitted that affidavits of three persons were filed supporting the case of the petitioner that the petitioner is in possession of the suit property. The learned Counsel further submitted that even respondents did not wp10750.10 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD _____________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________________ produce anything on record except affidavits of another three persons supporting their case. Therefore, according to him, prima facie, case was made out and the trial Court should have protected the interest of the petitioner pending the suit. 3 The learned Counsel for the respondents submitted that the petitioner plaintiff failed to prove its case, prima facie, and therefore, the impugned judgment and order needs no interference. He submitted that the specific findings are recorded by the appellate Court in para 11 that the plaintiff's possession does not appear to be based on the independent right vested in him. Therefore, the learned Counsel for the respondents relying on the reasons recorded by the Court below submits that this writ petition is devoid of merits and it may be dismissed. 4 Heard learned counsel for the parties at length. Perused the petition, annexures thereto. Perusal of the paragraph 12 of the impugned judgment makes it abundantly clear that not only the plaintiff - petitioner but also the other persons are also having right and interest in the suit land. The plaintiff - petitioner did wp10750.10 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD _____________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________________ not produce any document or any other evidence on record, except affidavit of three persons, showing that he has independent right in the suit property. Therefore, the concurrent findings recorded by the trial Court as well as District Court that the plaintiff has not established prima facie case to grant injunction in his favour as prayed by him. 5 Therefore, in my opinion, in absence of any independent document or any other evidence, except affidavits of three persons, the view taken by the trial Court as well as the appellate Court cannot be faulted. After all, relief of injunction is a discretionary relief and both the Courts have found that the plaintiff - petitioner has not established the case to grant the said relief. In that view of the matter, there is no merit in the petition and the same stands rejected. (S.S. SHINDE, J.) PLK/*