S.C. Sharma, J.J. - (1.)The petitioner before this Court, who is plaintiff before the learned trial Court, is aggrieved with the order dated 27/09/14 passed by the learned Civil Judge, Class-II, Indore in Civil Suit No.14-A/2013, by which, his application under Order 39, Rule 1 & 2 CPC has been rejected. Petitioner is also aggrieved by the order dated 10/08/16 passed by the learned Addl. District Judge, Indore in Civil Appeal No.02/2016, by which, the appeal against the order passed by the learned Civil Judge has been dismissed, meaning thereby, both the Courts below have declined to grant injunction in favour of the petitioner.
(2.)The facts of the case reveal that the present petitioner has filed the civil suit for declaration and for grant of permanent injunction and it was stated in the civil suit that husband of the defendant No.1 was real brother of the plaintiff and the father of the defendant Nos. 2 & 3, who are again the real brothers of the plaintiff. It was also stated that oral partition took place between the family and the land in question came to the share of the plaintiff. It was also stated that present petitioner is still in possession of the land. Along with the suit an application was preferred by the petitioner under Order 39, Rule 1 & 2 CPC before the learned trial Court. The plaintiff was not able to prove the factum of possession and the trial Court after taking into account all the documents produced by the plaintiff has given finding of fact that the plaintiff is not in the possession of the suit property and in those circumstances, the application preferred under Section 39 Rule 1 & 2 CPC has been rejected.
(3.)The appellate Court has again on the basis of evidence brought by the plaintiff on record has given finding of fact that learned trial Court has rightly passed the order dated 27/09/14, meaning thereby, the Courts below have been arrived at a finding of fact that plaintiff is not in possession of the suit land and both the Courts below have declined to grant injunction in the matter.