ORAL ORDER

1. The present petition is filed praying for the following reliefs:

“A. This Hon’ble Court may be pleased to admit and allow the present Special Civil Application;

B. This Hon’ble Court may be pleased to allow the present Application by quashing, setting aside and reversing the impugned order dated 26.09.2023 passed below Exhibit 12 in Regular Misc. Appeal No.1 of 2023 by the learned Additional District Court, Patan as well as Order dated 31.12.2022 passed below Exh.5 of the Regular Civil Suit No.4 of 2022 pending before the learned Principal Civil Judge, Santalpur at Varahi and thereby be further pleased to allow the said application below Exh.5 of Regular Civil Suit No.4 of 2022 pending before the learned Principal Civil Judge, Santalpur at Varahi in the interest of justice;

C. Any other and further relief(s) deemed fit in the facts and circumstances of the case.”

2. Heard learned advocate Mr. Malav M. Mulani for the petitioner.

3. Brief facts of the case are as under:

3.1 That the present appellant is Original Plaintiff whereas the Respondent herein is the Original Defendant in the Civil Suit filed before the learned Principal Civil Judge, Varahi being Civil Suit No. 41 of 2022. That the parties are referred to as their original position in the suit for the sake of convenience and brevity.

3.2. It is submitted that the plaintiff - Petitioner herein filed Civil Suit No. 41 of 2022 inter-alia praying for Title, Declaration and permanent injuction against the property named as 'Sutharki' having Khata No. 144, Revenue Survey No. 192 admeasuring 0-69-81 hec- acre-sqmtrs at Mouje Jhakhotra, Taluka Santalpur. The plaintiff has also made a prayer to the effect that the plaintiff be declared as owner and possessor in lieu of adverse possession. The plaintiff moved application for temporary injunction below Exh.5. That on 31.12.2022 the learned Principal Civil Judge, Santalpur has rejected the said application. That plaintiff has also filed an application seeking appointment of Court Commissioner for the purpose of drawing Panchnama. That against rejection of the said Exhibit 5 Application the plaintiff herein filed Regular Misc. Appeal No. 1 of 2023 below Exhibit 12 wherein the learned Additional District Court, Patan vide order dated 26.09.2023 rejected the said Application by way of passing the impugned order.

4. Learned advocate Mr. Malav Mulani has submitted that the Courts below have committed error though in the judgment, the trial Court has come to the conclusion by giving specific findings that the plaintiff can be considered in possession of the suit land, however, in another part, the trial Court has said that some more and proper documents are required to be produced to establish possession of the plaintiff for the land in question. He has further submitted that during the pendency of the suit proceedings, if status quo is granted, then the interest of the parties can be protected and both the Courts below have not considered this material aspect, even the defendant has admitted in his reply that the plaintiff is in possession of the suit property and therefore, interference of this Court is required by at least granting order of status quo during the pendency by quashing and setting aside the order passed by the Courts below.

5. I have considered the submissions made at the bar and also perused the orders passed by both the Courts below. Both the Courts below have concurrently found that the aspect of possession which is claimed by the plaintiff and the plaintiff has also pleaded in alternate by declaring his right on the basis of adverse possession, which is required to be considered by keeping in mind that the Courts below have considered various documentary evidence which is produced at Mark 4/11, the record of the District Inspector Land Record and in the revenue record the name of the father of the present petitioner - original plaintiff is mentioned and therefore, property in question is claimed as ancestral pro