( 1 ) THIS is an appeal under Order 43, Rule 1 CPC, wherein the appellant is the original plaintiff and the respondent is the original defendant.

( 2 ) THE plaintiff had filed suit for a permanent injunction restraining the defendant from disturbing or interfering with the possession of the plaintiff in respect of a plot situated at City Survey No. 767, site No. 44 in the city of Visnagar. The plaintiff had also filed an application for interim injunction at Ex. 5, which the trial court heard and ultimately rejected. It is this rejection of the injunction application at Ex. 5 which is the subject matter of the present appeal.

( 3 ) AS a result of the hearing and perusal of evidence, certain facts become obvious. Firstly, the plaintiff has not filed a suit for declaration of title and prayed for prohibitory injunction as a consequential relief. In fact, the plaintiff has sued only for prohibitory injunction restraining the defendant from disturbing or interfering with the possession of the plaintiff. This relief is claimed on an assertion that the plaintiff is in possession.

( 4 ) HOWEVER, the finding of fact recorded by the trial court as regards actual and physical possession is not in favour of the plaintiff, and there is a specific and positive finding that the defendant is in possession of the disputed property. Even at this appellate stage, learned counsel for the appellant is unable to make and sustain any contrary assertion as to the actual holding of physical possession. 4. 1. It is further obvious that the trial court, while rejecting application at Ex. 5, has not based the decision only on the finding of possession in favour of the defendant, but has also investigated the title of both the plaintiff and the defendant. As a result of this investigation, the trial court has come to conclusion, no doubt for the limited purpose of deciding the application Ex. 5, that the Sanad held by the plaintiff has been issued out of a mistake on the part of the authorities. The trial court has gone to the extent of saying that "this mistake may either be bonafide or malafide, and this mistake need not be investigated at this stage". Be that as it may, I am of the opinion that, it is not open to the trial court at least at an interim stage to casually brush aside a document of title issued by the competent authority namely ; Sanad, by observing that it has been issued out of a mistake, either bonafide or malafide. No document of title can be brushed aside casually in such a manner, unless such a finding is a result of a total consideration of whatever evidentary material the parties choose to place before the court, and the investigation of title, the legality and validity of the document of title etc. , is the very subject matter of the suit. In other words, a document of title may be recognized by a court or rejecting by a court, if such title is the subject matter of dispute before the court. However, as observed hereinabove, the plaintiff has not sought declaration of title, and the reliance upon the sanad was only for the purpose of showing the legitimacy of claim put forward in the plaint. Under the circumstances, it is not possible to approve of the impugned judgment and order, atleast on this count. 4. 2 However so far as the finding of fact as regards actual and physical possession in favour of the defendant is concerned, that cannot be lightly dispelled, and even at this stage, it appears that the defendant is in possession. Thus, the impugned order may otherwise be justified on the simple ground that the plaintiff would not be entitled to a prohibitory injunction restraining the defendant from interfering or obstruction the possession of the plaintiff, since the plaintiff is not in possession of the property.

( 5 ) IN the premises aforesaid, it is not necessary to discuss in greater detail, the validity or otherwise of the impugned judgment and order. Suffice it to say that it is sustainable on the aforesai