JUDGMENT :

SANDEEP N. BHATT, J.

1. Rule. Learned advocate Mr. Manan Shah waives service of notice of rule for respondents.

2. The present petition is filed with the following prayers:

“7(a) Your Lordships may be pleased to issue a writ of certiorari and/or any other appropriate writ order or direction in the nature of certiorari, quashing and setting aside the impugned order below Exh.33, dated 21.11.2022 in Misc. Civil Appeal No. 5 of 2018 passed by the 12th Addl. District Judge, Surat Annex. A Colly.

(b) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the implementation, execution and operation of the impugned order below Exh.33, dated 21.11.2022 in Misc. Civil Appeal No. 5 of 2018 Annex. A Colly.

(c) xxxx”

3. The brief facts leading to filing of this petition are as under:

3.1 It is the case of the petitioners that the land bearing survey no. 225/2, block no. 196, village Kumbhariya, Dist.Surat (hereinafter referred to as ‘the suit property’) was originally owned by Maganbhai Prabhubhai Patel, who died intestate on 24.10.1993, who had three sons and four daughters.

3.2 It is the say of the petitioners that in view of family settlement and arrangement at the relevant point of time, the suit land came to the share of the present petitioners-original defendant nos.1 and 2 and the procedure of heirship was carried out and the names of other heirs were deleted and they are possessing the suit property as absolute owners since 2001.

3.3 It is the say of the petitioners that after almost 16 years, the respondent nos.1 and 2- original plaintiffs preferred civil suit claiming share and partition of the suit property. It is submitted injunction application Exh.5 was preferred along with the suit being Regular Civil Suit No. 347 of 2016, which came to be rejected vide order dated 6.1.2018 by 9th Additional Senior Civil Judge, Surat.

3.4 Being aggrieved and dissatisfied with the said order of rejection, respondent nos.1 and 2-original plaintiffs preferred Misc. Civil Appeal No. 5 of 2018, which was allowed by the 12th Additional District Judge, Surat, vide order dated 21.11.2022 below Exh.33.

3.5 It is against this order, the present petition is filed by the original defendant nos. 1 and 2.

4. Heard learned advocate Mr.Amit Thakkar appearing with learned advocate Mr.Sagar J Shah for the petitioners and learned senior advocate Mr.Dhaval Dave appearing with learned advocate Mr.Manan Shah for the respondents.

4.1 Learned advocate Mr.Amit Thakkar submitted that the learned trial Court has considered the case for the purpose of injunction application below Exh.5 in an appropriate manner and has rejected the application for interim injunction filed by the plaintiff vide order dated 6.1.2018. The learned lower appellate Court, while considering the Misc. Civil Appeal No. 5 of 2018, has considered the same after almost delay of four years and vide order dated 21.11.2022 application at Exh.5 filed in Regular Civil Suit No. 347 of 2016 is allowed and the defendant no. 1 is restrained from creating any interest/title of any third party and restrained from alienating the suit property in any manner during the pendency of the present suit. He has submitted that this order is passed almost at the fag end of the trial when the trial is already proceeded and evidence is already recorded of the parties.

4.2 He has submitted that the learned lower appellate court has erred in exercising powers under Order 43 Rule 1 of Civil Procedure Code ‘CPC’ for short) at this belated stage and not properly considered the facts and circumstances of the present case; that the learned lower appellate court has erred in presuming that the plaintiffs are co-sharers and on that basis erred in holding that co-sharer always remained in possession of the joint land as representative of other co-sharers, there is no ouster of the possession of any co-sharer from any joint land and there is always deemed possession of the co-sharer