ORDER

This petition has been filed filed by the petitioners challenging the order dated 23.11.2023 by which the application of the petitioners herein (appellants before trial court) for temporary injunction has been dismissed in M.A. No.4/2023.

2.Brief facts of the case are that petitioners/plaintiffs filed a civil suit for declaration of title and permanent injunction and for declaration of revenue court order dated 09.01.2023 as null and void stating that survey No.42 Rakba 1.6300 hectare of village Jhiranya, District-Dewas has been wrongly recorded on 09.01.2023 in revenue records in name of respondent Nos.1 and 2 / defendants, who have no right to get their name recorded in the revenue record. The said land was earlier in the name of Umrao, who was the owner of the disputed property. Umrao expired on 04.02.1980 and --2-- sister of Umrao - Sodra Bai also expired. After the death of her brother Umrao, she never tried to claim the said land and never got her name recorded over the said land in her life time. Umrao had adopted Ram Bharos as his son and the petitioners are son, daughter, wife of Ram Bharos and after the death of Ram Bharos, they became the owners of the disputed land of Umrao as Ram Bharos being his adopted son became the owner of disputed land after the death of Umrao.

3.After the death of Umrao, Ram Bharos was in continuous possession of the disputed land during his life time. He was an illiterate person and never tried to get his name recorded in revenue record in place of Umrao. After the death of Ram Bharos, wife of Ram Bharos/plaintiff filed an application for mutation before Tahsildar and defendant Nos.1 and 2 also filed application for mutation. On 09.01.2023, Tahsildar mutated the names of defendants being the children of Sodra Bai who was sister of Umrao.

4.Plaintiffs/petitioners filed suit for declaration of title and permanent injunction and also filed application under Order 39 Rule 1 and 2 for protection in regard to the possession. Trial court on 27.07.2023 rejected the stay application filed by the plaintiffs/petitioners. Then, petitioners preferred miscellaneous appeal before First District Judge, Khategaon, District-Dewas being MCA/04/2023 and first appellate court affirming the order of the trial court dismissed the miscellaneous appeal filed by the plaintiffs.

5.Being aggrieved by the impugned order, plaintiffs filed this petition submitting that the impugned order (Annexure P-5) is illegal and has been passed ignoring the principles of settled law. He further submits that both the courts below have held that there is no evidence on record to show that petitioners' father was adopted by late Umrao. He further submits that --3-- according to Panchnaama, they have found the settled possession of the suit land so impugned order passed by both the courts below be set aside and injunction be granted in favour of the petitioners.

6.On the other hand, learned counsel for the respondents supported the impugned order and prayed for rejection of this petition.

7.Heard the learned counsel for the parties and perused the record.

8.At the time of deciding the injunction application, merits of the case must not be seen. At the time of deciding the injunction application it should not have been decided that plaintiffs/petitioners' father Ram Bharos was an adopted son of Umrao or not. It should be decided at the time of passing final judgment after taking evidence of both the parties. In the present case, plaintiffs filed documents before the trial court i.e. voter-card, Aadhar card, Gram Panchayat records and in all the documents Ram Bharos was mentioned as adopted son of Umrao. During the pendency of the proceeding before the revenue court, as per the measurement report on the application filed by the respondents, the revenue court finds that possession of the suit land was in favour of the plaintiffs/petitioners.

9.It is settled principles that at the time of deciding injunction application, it mu