Smt. Kunda Prakash Sinai Karapurkar and Others vs Shri Vijay Balkrishna Karapurkar and Others

F.M. Reis, J

Heard Shri J.P. Mulgaonkar, learned Counsel appearing for the petitioners and Shri Sudin M.S. Usgaonkar, learned Counsel appearing for the respondents. The above petition challenges the judgment passed by the lower appellate Court dated 14/05/2009 whereby an appeal preferred by the respondents came to be allowed and the application for temporary injunction filed by the respondents was allowed.

Shri J.P. Mulgaonkar, learned Counsel appearing for the petitioners has assailed the impugned order and pointed out that the lower appellate Court was not justified to interfere in the discretion exercised by the trial Court in dismissing the application for injunction. Learned Counsel further pointed out that granting the injunction is a discretionary power of the trial Court and it was not open for the lower appellate Court to interfere and reverse the findings of the trial Court while passing the impugned judgment. Learned Counsel further pointed out that the learned trial Judge while disposing the application for temporary injunction has come to the conclusion that the respondents have failed to identify the property Surveyed under No.99/0 corresponds to the property registered in the Land Registration No.14527 of Bordem village. Learned Counsel further pointed out that as the property claimed by the respondents has not been co-related with the survey records the question of granting the injunction as prayed for by the respondents does not arise.

On the other hand, Shri Sudin Usgaonkar, learned Counsel appearing for the respondents has supported the impugned judgment passed by the lower appellate Court. Learned Counsel further pointed out that the lower appellate Court has rightly interfered in the discretion exercised by the learned trial Court inasmuch as the lower appellate Court after considering the material on record has come to the conclusion that the property claimed by the respondents corresponds to the property having Land Registration No.14527. The learned Counsel has further pointed out that there is no case for any interference in the judgment passed by the lower appellate Court as there is no jurisdictional error committed by the lower appellate Court which calls for interference by this Court under Article 227 of the Constitution of India. Learned Counsel further clarifies that the status quo granted by the lower appellate Court is to mean that the petitioners shall not alienate and/or create third party right in respect of the suit property.

Having heard the learned Counsel and on perusal of the records, I find that the lower appellate Court has rightly found that the discretion exercised by the learned trial Judge was not in accordance with law. The lower appellate Court has consolidated the documents produced by the respondents specially the inscription document and found that the property referred to therein corresponds to the property Surveyed under No.99/0 of Bordem Village. Lower appellate Court has also found that on the basis of material on record that it would be appropriate to restrain the petitioners from creating third party right and/or alienating the suit property. As such, I find that the lower appellate Court has not committed any jurisdictional error which calls for any interference by this Court. The findings arrived by the learned District Judge are only prima facie findings which shall not influence the learned trial Judge while deciding the suit on merits. Taking note of the contentions of Shri Usgaonkar, learned Counsel appearing for the respondents the status quo granted is to the effect that the petitioners shall not create any third party right and/or alienate the suit property. Subject to the above, I find no merit in the above petition which stands dismissed.