mp -1- wp9146_10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9146 OF 2010 Jaywant Kondibha Sul and others .. Petitioners Versus Suresh Jagannath Devkate .. Respondent Mr. S. S. Shah for the Petitioners. Mr. Ajay A. Joshi for the Respondent. CORAM : B.R. GAVAI, J. THURSDAY, JANUARY 20, 2011 P.C. : By way of the present petition, the petitioners challenge the order dated 9th September 2010 vide which the appeal filed by the respondent against the order of the learned Trial Court granting injunction in favour of the present petitioners came to be allowed. 2. Shri Shah, learned counsel appearing on behalf of the petitioners submits that since the learned Trial Court has passed an order of injunction by the elaborate and reasoned order, there was no occasion for the Appellate Court to reverse the same. mp -2- wp9146_10 3. Shri Joshi, the learned counsel appearing on behalf of the respondent, on the contrary, submits that the petitioners had failed to produce any material on record to show that they were in possession of the agricultural land. He submits that insofar as the possession of the petitioner in the residential quarters is concerned, it is the case of the defendants that it was the permissible occupation and that the defendants have already undertaken that the plaintiffs would not be evicted without following due process of law. 4. No doubt that the scope of interference in an appeal against the order under Order 43 Rule 1(R) of Code of Civil Procedure is very limited. Unless the Appellate Court finds that the view taken by the Trial Court is either perverse or impossible, it is not possible for the Appellate Court to reverse the finding. Equally, it is also not permissible for the Appellate Court to reverse the order of the Trial Court only because it finds that two views are possible and that the other view appears to be more correct view. The plaintiff has filed the Suit for partition and possession. During the pendency of the Suit, an application under Order 39, Rule 1 and 3 is also filed. It is not in dispute that there are certain lands standing in the name of the plaintiff also. However, the plaintiff does not seek an injunction with respect to the lands standing in his name, but order in the name of other coparceners. For granting an order of temporary injunction, the onus is on the plaintiff to establish prima facie case. The said prima facie case has to be established by some evidence. Admittedly, no documentary evidence mp -3- wp9146_10 is placed on record to show the plaintiff’s possession over the agricultural land. The plaintiff has not even examined any of the neighbouring witnesses to establish that he was in possession of suit lands. It appears that the learned Trial Court has, therefore, granted injunction only on the ground of the statement made in the application. I find that in view of the documentary evidence supporting the case of the defendants, inasmuch as the revenue entries establish that they were the owners of the land in question and in possession thereof, the learned Trial Court could not have granted the injunction. In that view of the matter, I find no error in the impugned Appellate Order. 5. Insofar as the residential premises are concerned, it is the case of the defendant that initially the petitioners were residing in the premises constructed on his land. However, in the year 1998 since there was a water logging in his field, he permitted to construct the huts on the suit land. Defendants have been further fair enough to state that the plaintiff would not be evicted from residential premises without following due process of law. In that view of the matter, I find that insofar as the residential premises’ occupation of the plaintiff is concerned, the interests of the plaintiff is duly protected. No case is made out for interference. Hence rejected. (B. R. GAVAI, J)