ash 1 54ao-61.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO. 61 OF 2011 Kailashbahadur Bhagwat Singh & Anr. .. Appellants Vs Surjitkumar Setbahadur Singh & Anr. .. Respondents -- Shri Jagdish S. Singh for the Appellants. Shri R.G. Megh for Respondent. -- CORAM ; A.S. OKA, J DATED : 18TH MARCH, 2011 P.C. . Unsuccessful Plaintiffs have preferred this Appeal from Order for challenging the order passed by the Trial Court by which the a relief of temporary injunction has been denied. 2. The learned counsel appearing for the Appellants submitted that the Appellants are occupying the suit premises and there is documentary evidence on record to prove their occupation. He submitted that the suit is essentially filed for protecting the occupation of the Appellants. He invited attention of the Court to Paragraph 3 of the plaint in which it is stated that the father of the 1st Appellant came to Mumbai in 1969 and thereafter, he called his eldest son to Mumbai and got him employed in a Mill. He has contended that the father of ash 2 54ao-61.11 the 1st Appellant has obtained the suit premises on rental basis from the landlord in the name of his elder son Setbahadur Singh as the 1st Appellant was minor at that time. He pointed out that the present Respondents are the sons of the said Setbahadur Singh. He submitted that there is no attempt made by the Appellants to suppress any document inasmuch as it is stated in the plaint that the tenancy stood in the name of father of the Respondents and therefore, a finding recorded by the Trial Court regarding suppression of the documents is totally an erroneous finding. 3. I have considered the submissions. The substantive prayer for declaration made in the plaint reads thus:- “a. That it be declared that the Defendants have no right to disturb the Plaintiffs peaceful possession in respect of the Suit Premises viz. Room No.2/A, of Ladkibai Chawl No.116 “F”, Worli, Koliwada, Mumbai – 400 030.” 4. Averments made in the plaint disclose that the Appellants have not claimed any independent right in respect of the suit premises. Prima facie, it appears that unless the Appellants claimed any independent right, they will not be entitled to a relief of declaration as prayed. Though it is admitted that the Respondents are the sons of Setbahadur Singh who was the tenant, it is not disclosed in the plaint in ash 3 54ao-61.11 what capacity the Appellants are occupying the suit premises. In the circumstances, the Trial Court was justified in declining to grant a discretionary and equitable relief of temporary injunction in favour of the Appellants. Hence, no case is made out for interference with the impugned order. The Appeal is dismissed. However, it is made clear that all the contentions of the parties on merits of the suit are kept open and the suit will be decided without being influenced by the tentative findings recorded in the impugned order as well as the tentative findings recorded in this order. 5. Civil Application No.421 of 2011 does not survive and the same is disposed of. ( A.S. OKA, J )