Case Note & Summary
The petitioner, original defendant, challenged the judgment and order dated 05.10.2015 passed by the lower appellate court in Misc. Civil Appeal No. 29 of 2014, which allowed the injunction application filed by the respondents/plaintiffs. The suit was a simplicitor suit for injunction restraining the defendant from interfering with the plaintiffs' possession over the suit property. The trial court had rejected the injunction application, but the appellate court reversed that decision. The High Court noted that the property appears to be joint family property and that neither the trial court nor the appellate court recorded any finding on the question of possession. The appellate court failed to consider the partition deed which contained recitals about possession. Consequently, the impugned order suffered from non-application of mind. The High Court allowed the writ petition, quashed the appellate court's order, and remanded the matter to the Principal District Judge, Amravati, for recording a specific finding on physical possession. The parties were directed to appear before the lower appellate court on 19.12.2016.
Headnote
A) Civil Procedure - Injunction - Possession - In a suit simplicitor for injunction, the court must record a specific finding on physical possession of the suit property - The appellate court failed to consider the partition deed and did not determine whether plaintiffs or defendant were in possession - Held that the order suffers from non-application of mind and is unsustainable (Paras 2-3).
Issue of Consideration
Whether the lower appellate court's order granting injunction was sustainable without recording a specific finding on physical possession of the suit property.
Final Decision
Writ petition allowed. Judgment and order dated 05.10.2015 passed by the lower appellate Court in Misc. Civil Appeal No. 29 of 2014 is quashed and set aside. Matter remanded back to the Principal District Judge, Amravati, for recording specific finding on the aspect of physical possession. Parties to appear on 19.12.2016.
Law Points
- Injunction
- Possession
- Joint Family Property
- Remand
- Non-application of mind
