B.J. Shethna, J. - (1.) Learned counsel Mr. Nagori vehemently that the First appellate court committed a grave error in interfering with order passed by the Trial Court confirming the interim order passed by it restraining the respondents from interfering with the possession over the land in question of the petitioner. He submitted that the Trial Court came to the conclusion that the petitioner is undisputedly an owner of the land in question therefore, while confirming its earlier ex-parte order vide its order dated 9.4.1994, the Trial Court ordered to remove the standing crop cultivated by the respondents on the land in question of the petitioner. He, therefore, submitted that it was not open to the First Appellate Authority to interfere with such a discretionary order passed by the Trial Court in appeal. He also submitted that the First Appellate Authority has also come to the conclusion that the petitioner was the owner of the land in question. In that view of the matter, the First Appellate Court should not have interfered with such discretionary order. He also submitted that the Board of Revenue expressed its helplessness in interfering with the order passed by the First Appellate Authority which has disturbed the order passed by the Trial Court by observing that the petitioner failed to prove her possession on the land in question. In support of his submission. learned counsel Mr. Nagori has relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Premji Ratansey Shah & Ors. v. Union of India & Ors. reported in 1994(5) S.C.C. page 547. In Premji's case (supra), the unsuccessful plaintiffs in both the Court below were the petitioners and their suit for declaration and injunction against its true owners was dismissed. The Hon'ble Supreme Court held that issuance of an order of injunction is an absolutely discretionary and equitable relief. It is also held that injunction would not be issued against the true owner. On facts of that case, the Supreme Court held that the courts below have rightly rejected the reliefs of declaration and injunction in favour of the petitioner who had no interest in the property. This is not the case here.
(2.) In this case, the petitioner who claims to be the owner of the property filed a suit against the private respondents for declaration and permanent injunction restraining them for interfering with her possession. The Trial Court granted ad-interim injunction on 30.12.93 in favour of the petitioner which was confirmed after hearing the other side on 9.6.94. From the impugned order passed by the Trial Court, it is clear that the defendants/respondents were ordered to remove their standing crop on the land in question. Thus, prima-facie it shows that the respondents were in possession who cultivated the land even after the ex-parte interim order of the Court. It is also true that the contempt petition is filed by the petitioner before the Trial Court under Order 39 Rule 2-A. Civil Procedure Code for committing the breach of the interim order. However, the case of the defendants was that they were already in possession and cultivating the land. Be that as it may. The facts shows that when the suit was filed, the petitioner was never in possession of the land in question. That is apparent from the averments made by the petitioner herself in paras 5 and 6 of this petition that she was not in possession of the land in question but the respondents were in possession. However, Mr. Nagori, learned counsel for the petitioners tried to submit that they have committed trespass over the land and thereby they were in possession. therefore, the Trial Court rightly passed the order of restraining the respondents from interfering with the possession of the land. This submission of Mr. Nagori cannot be accepted because thought the petitioner is prima-face found to be owner of the land. If they were not in actual possession of the land, such an injunction could not have been granted. Under the circumstances the First Appellate Court though found that the petitioner was the owner but allowed the appeal of the respondents on the ground that they were in possession of the land in question, therefore, no injunction can be issued against them during the pendency of the suit, Under the circumstances, the Board of revenue refused to entertain the revision filed by the petitioner.
(3.) In that view of the matter, this Court would be slow in interfering with such order passed by the First Appellate Court below in its writ jurisdiction.;