1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.305/2011 HEMRAJ HATEWAR & ORS ..VS.. CHUDAMAN WADIBHASME & ORS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri D.V.Shiras, advocate for the petitioners CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 28, 2011. Both the courts have concurrently held that the plaintiffs / petitioners were not in possession of the suit property and were therefore, not entitled for a temporary injunction restraining the defendant from disturbing the possession of the plaintiffs over the suit property. It is necessary to note that previously also a similar application was filed by the petitioners for grant of temporary injunction to the aforesaid effect, but the said injunction application was rejected. The petitioners had preferred an appeal against the said order before the First Appellate Court but the same was also dismissed. Thereafter, the petitioners again filed a second application under order 39 rule 1 and 2 of the Code of Civil Procedure seeking an injunction restraining the defendant from disturbing the possession of the petitioners over the suit property. The second application was made by the petitioners on the basis of a report of the Tahsildar, holding that the petitioners were in possession of the suit property. Both the court rightly held that the order of the Tahsildar was passed on 20.1.2009 during the pendency of the appeal before the First Appellate Court and the said change in circumstances, if any occurred during the pendency of the appeal and not after the decision of the appeal against the order passed against the petitioners at exhibit 5. The 2 courts further found that there was no documentary evidence on record to show that the defendants/ respondents or any of them was aware of the date of the visit of the Tahsildar to the said property. The courts found that at the time of spot inspection by the Tahsildar, none of the defendants were present on the suit property and the possession of the petitioners as observed by the Tahsildar on the suit premises might be a stray act of possession by the plaintiffs during the absence of the true owner i.e. the defendants. The courts rightly held that such a possession could not have been protected. The courts also dismissed the application merely because just a few months earlier the courts had held that the petitioners were not in possession of the suit property and were not entitled to grant of injunction as prayed by them. The orders passed by both the courts are based on a proper appreciation of documents and surrounding circumstances and the same cannot be interfered with in exercise of the writ jurisdiction. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE SMP