JUDGMENT :

1. Rule, returnable forthwith. With the consent of the Learned Counsels for the parties, called out for final hearing.

2. By this petition, the petitioner challenges the order dated June 30, 2022 passed by the 4th Jt. Civil Judge, Junior Division, Malegaon rejecting petitioners’ application for providing police protection to assist them in cultivating the suit land in pursuance of the order of interim injunction passed in his favour.

3. The suit is filed by the petitioners-plaintiffs seeking permanent injunction against the defendants from interfering in their possession over the suit property. In application filed for temporary injunction, the trial Court was pleased to pass the order dated January 7, 2022 temporarily restraining the defendant no.1 from causing any kind of obstruction to the possession of the plaintiffs over the suit property. It is contended that defendant no.1 has filed an Appeal before the District Court challenging the order of temporary injunction. However, it is a common ground that till date, the order trail court dated January 7, 2022 is neither stayed nor varied by the Appellate Court. The order of injunction continues to operate.

4. Petitioners filed application at Exhibit-52 contending that when they approached the suit property on January 8, 2022 for flattening the same with a JCB Machine for cultivation purposes, the defendant no.1 and his accomplice threatened, assaulted and thereby prevented them from entering the suit property. It is further contended in the application that an FIR has been lodged against the defendant no.1, who was arrested. It is further contended that, after being released from custody, defendant no.1 was likely to harass the plaintiffs and further prevent them from cultivating the land. In this background, a prayer was made for police protection for cultivation of the land.

5. The application was resisted by defendant no.1 by filing reply, submitting that the plaintiffs were never in possession of the suit property. That defendant no.1 has constructed a house in the suit property in which his servants reside. It is further contended that on January 8, 2022, the plaintiffs attempted to cause damage to the shed constructed by defendant no.1 by use of JCB machine. That the plaintiffs had arrived at the suit property on January 8, 2022 with goons carrying weapons and the defendant no.1 was threatened and even fired upon. It is contended that on the basis of the FIR lodged by defendant no.1, plaintiffs and their Advocate were arrested and later released on bail. It is further contended that defendant no.1 is in possession of the land admeasuring 10 acres out of the suit property.

6. The trial Court proceeded to reject the application at Exhibit-52 by its order dated June 30, 2022 observing that the petitioner/plaintiff had to first file application under the provisions of Order 39 Rule 2A of the Code of Civil Procedure and solicit assistance of the police and thereupon the Court could exercise powers under Section 151 of the Code of Civil Procedure for giving police protection as a last recourse considering the facts and circumstances of the case.

7. I have heard the learned counsels appearing for the parties at length.

8. The order of temporary injunction granted by the trial Court, breach of which is alleged by Petitioners, reads thus:

“1. Application Exh.05 is allowed.

2. The defendant No.1 and his agents and servants or any persons on his behalf is hereby temporarily restrained from causing any kind of obstruction to the possession of plaintiffs over the suit properties bearing Gat No.153 and 157 (more particularly described in plaint para 1) situated at village Malde, Tal. Malegaon till the decision of main suit.”

9. From the contents of the reply filed by defendant no.1 to application is at Exhibit-52, so also the submissions made before me today, it is clear that defendant no.1 is claiming to be in possession of the suit property even today. It is the case of defendant