ORDER : 1. The present appeal from order is filed at the instance of the appellants (original plaintiffs) under Order 43 Rule (1)(r) of the Code of Civil Procedure, 1908 being aggrieved and dissatisfied by the order dated 22.7.2019 passed by the City Civil Court, Ahmedabad below Ex.6 & 7 in the Civil Suit No.1533 of 2016. 2. The appellants filed the Civil Suit No.1533 of 2016 seeking the following reliefs :- “(A) The property flat situated in Twins Apartment, Maninagar is under the ownership and occupancy of deceased Kumudben Subhodbhai Gajjar and the property flat No.5 and 6 situated in Twins Apartment is under the ownership of deceased Subhodbhai Jamnadas Gajjar as mentioned in para-2 of the Plaint. As the deceased have died intestate, we-the Plaintiffs are direct heirs as per Hindu Succession Act and our equal share devolves over the property. Hence, Your Honour is prayed to award decree as per metes and bounds in favour of we-Plaintiffs. (B) Your Honour may be pleased to declare that, the Respondents have no right to cause any obstruction, prevention or hindrance in the possession or the occupancy of Flat No.3 owned by Plaintiff No.1 and Flat No.4 owned by Plaintiff No.2 situated on the first floor of Twins Apartment, Maninagar as mentioned in the Plaint, and also pleased to grant permanent injunction that, the Respondents of this case shall not obstruct, prevent or cause to obstruct, prevent the Plaintiffs from using Flat No.3 and 4 owned by the Plaintiffs. (C) The Plaintiff No.1 holds the possession of the property Flat No.1 facing the road on the ground floor of Twins Apartment since death of his father. Hence, Your Honour may be pleased to grant permanent injunction that, the Respondents shall not obstruct, prevent or cause to obstruct, prevent the Plaintiff No.1 from using that property. (D) Grant any other relief which may deem fit and proper to the Hon’ble Court looking to the facts of this Suit.” 3. Hence, Your Honour may be pleased to grant permanent injunction that, the Respondents shall not obstruct, prevent or cause to obstruct, prevent the Plaintiff No.1 from using that property. (D) Grant any other relief which may deem fit and proper to the Hon’ble Court looking to the facts of this Suit.” 3. The appellants filed application below Ex.6 & 7 seeking the following reliefs :- “[a] Kindly pass an interim injunction order that pending final disposal of the suit, the defendants or their relatives, agents, servants or attorneys do not have right to disturb or obstruct the peaceful and actual possession of the plaintiff in the suit property bearing Flat No.3 owned by the plaintiff no.1 and Flat No.4 owned by the plaintiff no.2 situated on the first floor in Twins Apartment, Maninagar as described in the suit or they do not have right to restrain the plaintiffs and their relatives from entering into said property, and therefore, the defendants should not restrain the plaintiffs from occupying the said Flat No.3 and 4. [b] Kindly pass an interim injunction order that pending final disposal of the suit, the defendants or their relatives, agents, servants or attorneys, do not restrain the plaintiff no.1 from entering into road facing flat no.1 on ground floor of Twins Apartment with furniture, clothes and other articles as the plaintiff no.1 holds possession of the said property since the death of his father.” 4. Considering the averments made by the respective parties the Court below by order dated 22.7.2019 rejected the application filed by the appellants below Ex.6 & 7 and directed both the parties to maintain status-quo. The said order dated 22.7.2019 is produced thus :- “6. A perusal of case file reveals that it is very necessary to peruse the document at Exhibit:4/2 before this Court comes to any conclusion. A perusal of document at Exhibit:4/2 reveals that this is a registered document executed by Late Subodhbhai Jamnadas Gajjar (father of the plaintiffs and defendant) in the year 1988. A perusal of case file reveals that it is very necessary to peruse the document at Exhibit:4/2 before this Court comes to any conclusion. A perusal of document at Exhibit:4/2 reveals that this is a registered document executed by Late Subodhbhai Jamnadas Gajjar (father of the plaintiffs and defendant) in the year 1988. As per the said document the suit property which was a vacant plot at that time was divided into six (6) different portions upon which six (6) fats had to be constructed with the passage of time, but since at the time of execution of this document the parties were not having sufficient finance, hence by virtue of said document the site for fats No.2, 3 and 4 were given to defendant, plaintiff No.1 and plaintiff No.2, respectively. Whereas, fat No.1 came to the share of mother of the parties herein and fat No.5 and 6 were retained by Late Subodhbhai Jamnadas Gajjar. In these circumstances a bird eye view of this document reveals that the construction had to be constructed by all the respective parties upon the suit property as per and in accordance with their respective shares allotted to them by way of this document. A further perusal also reveals that none of the plaintiffs or defendant had signed this document at the time of execution of the same and the father of the parties herein had signed in the capacity of power of attorney holder of parties herein. It is to be worth noting that of spring of any parents may have disputes inter-se qua property left by their parents, but a parent will never in his/her wisdom will want such disputes to arise. Similar is the situation in the present case, the father of the parties herein had very clearly partitioned half of the suit property during his lifetime between the parties herein, and very wisely chosen to retain half of it with him and his wife. In these circumstances this Court is of the considered opinion that the wishes of Late Subodhbhai Jamnadas Gajjar are to be given primacy over any dispute raised by the parties herein in context of the suit property particularly when none of the parties have denied the execution of this document nor anyone of them claims that it has been revoked or cancelled at any point of time. 7. 7. At this stage after perusing this document further appraisal of pleadings of plaintiffs it is revealed that as per the documents appended at Exhibit:4/9, 4/10 and 4/21 it has been mentioned that the possession has been snatched by the defendant and his son even prior to fling of the present suit. That being so it is very much clear on the record that on the date of fling of the present suit the plaintiffs were not in the possession of the suit property. Hence, it is hereby observed that so far the pleadings qua possession in the plaint as well as injunction application are concerned the plaintiffs have not approached this Court with clean hands and have falsely pleaded their possession over suit property. 8. Now coming to the other aspect of the case document at Exhibit:4/2 reveals that by virtue of this document the father of the parties herein had in his lifetime divided separate fats to each of the plaintiffs and defendant as mentioned hereinabove. No doubt at that time the suit property was vacant upon which the construction had to be done by the parties out of their financial resource, but so far the pleadings of defendant is concerned on this aspect the defendant has pleaded that he had provided help in financial terms to his father in raising construction over the suit property. In fact during the course of argument it was submitted by the learned Advocate for defendant that the defendant had alone rendered financial assistance to his father at the time of construction of the suit property and the plaintiffs did not pay a single penny in this regard. Further on the basis of document at Exhibit:4/2 this Court finds it hard to believe that when the separate portion were allotted to parties, then how, why and under what circumstances the defendant rendered financial assistance even to raise construction over the suit property which had fallen into the share of plaintiffs. Apart from this, written statement of defendant reveals that no such proofs on the file have been placed by the defendant to the effect that he had rendered any financial assistance to his father for construction over the suit property. Apart from this, written statement of defendant reveals that no such proofs on the file have been placed by the defendant to the effect that he had rendered any financial assistance to his father for construction over the suit property. This Court is of the considered opinion that since the father of the parties herein had partitioned the suit property vide Exhibit:4/2 and given three different fats to the plaintiffs and defendant in the shape of Flat No. 3, 4 & 2 then the remaining portion of the suit property (of which owners were the parents of the parties herein who died intestate) should be subject to petition by way of metes and bounds. In these circumstances this Court observes that the defendant has also not approached this Court with clean hands and his pleadings and submissions are at variance from the facts mentioned in the document at Exhibit:4/2, which is still in existence and has not been cancelled or challenged by any of the parties. 9. In a suit for partition either it be the plaintiffs or defendant every party can be considered as plaintiff. In these circumstances it is the bounden duty of the parties to approach the Court with clean hands. Further this Court is of the considered opinion when both the parties herein have dared to touch the fountain of justice with tainted hands. Hence, in these circumstances the following order ensues: ORDER 1. The Notice of Motion at Exhibit:6-7, is hereby rejected, being devoid of any merits since the plaintiffs are not in the possession of the suit property. 2. It is worthwhile to mention here that the plaintiffs by way of injunction application have also prayed for an alternative relief which this Court deems fit, in these circumstances this Court is of the considered view that interest of justice will be best served if both the parties are hereby directed to maintain status-quo regarding alienating and creating any charge over the suit property, since the suit property is liable to be protected till final disposal of the case. 3. It is hereby further observed that plaintiffs who have not sought any relief of possession may be at liberty to amend their plaint in accordance with law. 4. 3. It is hereby further observed that plaintiffs who have not sought any relief of possession may be at liberty to amend their plaint in accordance with law. 4. Since this Court has found during the course of arguments both the parties have not approached this Court with clean hands, hence, cost of Rs.2,000/- (Two Thousand) each is imposed upon both the parties herein to be deposited in District Legal Services Authority within a period of fifteen days from today. Pronounced in the Open Court on this 22nd day of July, 2019.” 5. Being aggrieved and dissatisfied by the order dated 22.7.2019 passed by the Chamber Judge, Court No.23, City Civil Court, Ahmedabad, below Ex.6 & 7 application the appellants (original plaintiffs) approached this Court by filing the present appeal from order. 6. The facts giving rise to the present appeal from order may be summarized as under :- 6.1 The dispute centers around 06 flats known as Twins Apartments, constructed on Plot No.60 Paiki Hissa No.18B admeasuring 883.23 sq.mtrs., of Village : Rajpur-Hirpur, Taluka: City, District : Ahmedabad (for short ‘suit property’). The said property belonged to joint family of Subodhbhai, who was the father of parties to this appeal. Subodh Gajjar and Kumud Gajjar had 03 sons viz. Nikhil, Prashant and Pradip. The late father Subodhbhai by passage of time demolished the earlier bungalow constructed over the suit property and later on converted the suit property into 06 separate flats. The father executed registered partition deed amongst the parents and all the three sons on 4.7.1988. The details are produced thus :- Flat No.1 – Kumudben – Mother of parties Flat No.2 – Nikhil – Defendant Flat No.3 – Prashant – Plaintiff No.1 Flat No.4 – Pradip – Plaintiff No.2 Flat No.5,6 – Subodhchandra – Father. 6.2 It is the case of the appellants that both the appellants are residing at Pune and USA respectively and they came to take care of the suit property from time to time at their convenience. It is further the case of the appellants that in the year 2016 the defendant locked the gate as well as passage which reached to Flats No.3 and 4 and he obstructed the way of the appellants to their respective flats. Under such circumstances, the appellants had to resort to filing of criminal complaint against the respondent. It is further the case of the appellants that in the year 2016 the defendant locked the gate as well as passage which reached to Flats No.3 and 4 and he obstructed the way of the appellants to their respective flats. Under such circumstances, the appellants had to resort to filing of criminal complaint against the respondent. 6.3 The respondent has opposed the said submissions made by the appellants stating that on the ground of partial partition and non-maintainability of the suit on the basis that the plaintiffs were never in possession of the suit property and, therefore, the question of protecting the possession of the plaintiffs did not arise. Further the respondent was taking care of the parents and he is in possession of the entire suit property and, therefore, the appellants have no right whatsoever in the possession of the suit property and the appeal be dismissed. 4. Ms. Trusha Patel, the learned counsel appearing for the appellants relied on the partition deed dated 4.7.1988 and submitted that Flats Nos.3 and 4 are of the ownership of the appellants. Ms. Patel submitted that the appellants No.1 and 2 are the sole owner and occupier of the Flats No.3 and 4 respectively. She submitted that the property card is running in the name of the parents as well as all the three sons. 4.1 She submitted that the electricity connection of all the six flats are in the respective names of the holders of the flats. She submitted that 7/12 record is also in the name of all the family members. She also relied on the property tax bill which is in the name of all the family members. She submitted that Flat No.1 belongs to the mother and Flats No.5 and 6 belong to the father as per the partition and thereafter the parents expired. She submitted that the defendant has no right to restrain the appellants from enjoying the Flats No.3 and 4 which exclusively belong to the appellant herein and the defendant be restrained from interfering from the use of the flats appellants. 5.2 Ms. Patel relied upon the Court Commissioner’s report dated 8.8.2016 which reflects that in two flats i.e. Flats No.1 and 2 the defendant is residing and remaining flats are locked which have been opened up by the defendant with the keys possessed by the defendant. 5.2 Ms. Patel relied upon the Court Commissioner’s report dated 8.8.2016 which reflects that in two flats i.e. Flats No.1 and 2 the defendant is residing and remaining flats are locked which have been opened up by the defendant with the keys possessed by the defendant. Lastly she submitted that the Court below has erred in not preventing the defendant from restraining the appellants plaintiffs in utilizing their own Flats No.3 and 4 mainly on the ground that the appellants did not seek relief in respect of the possession. She submitted that the appellants have expressly sought protection of ownership and occupation of the Flats No.3 and 4 and hence there was no defect in the prayers as prayed for in the suit as to disentitle the appellants from getting interim protection. She submitted that in view of above submissions the appeal be allowed and the order below Ex.6 and 7 passed by the Court below dated 22.7.2019 be quashed and set aside. 5.3 In view of above submissions Ms. Patel relied on the decision of the Hon’ble Supreme Court which are produced thus :- (a) Maria Margarida Sequeria Fernandes vs. Erasmo Jack De Sequeria (Dead) Through Lrs., reported in (2012) 5 SCC 370 . (b) Annasaheb Bapusaheb Patil vs. Balwant Alias Balasaheb Bapusaheb Patil, reported in (1995) 2 SCC 543 . 6. Per contra, Mr.Shrenik Jasani, the learned counsel appearing for Mr. Vimal Purohit, learned advocate for the respondent has filed written submissions which were taken on record and are produced thus :- 6.1 Mr. Jasani submitted that the prayers in the present Civil application for stay along with the appeal from order are not maintainable as the Appellants have sought relief for possession of properties in question which are not sought in Exhibit 5 application as well as the plaint. It is submitted that admittedly the appellants have not prayed for relief of possession before the Ld. Trial Court in the Civil Suit No. 1533 of 2016 and therefore, the prayers prayed for in the present appeal from order seeking possession of the suit property, are not maintainable. It is unheard that the prayers of the Appeal from order are different from the prayers prayed in Ex.5 application. In the instant case the same are not only different but are contradictory to each another. It is unheard that the prayers of the Appeal from order are different from the prayers prayed in Ex.5 application. In the instant case the same are not only different but are contradictory to each another. The Court below has taken serious note of the said aspect to which there is no justification from the appellant. 6.2 He submitted that the appellant has sought relief of possession for the first time before this Hon'ble Court and not claimed at earlier stage, hence the same cannot be granted at this stage. Without prejudice to the submissions advanced herein, even if it is believed for the sake of argument that the appellants have sought relief for possession of the suit property then too, such relief cannot be granted at interim stage as such relief would tantamount to granting of the main relief of the plaint and that too without adjudication. 6.3 He submitted that the appellant in Exhibit-5 application principally prayed for injunction against the present respondent - original defendant of the nature that the respondent be restrained from disturbing the peaceful possession of the Flat property bearing Flat No.3 and 4 alleged to be of the ownership of the respective appellants. Moreover, the main relief in the plaint is for partition of the properties of Late Subodh Jamnadas Gajjar by metes and bounds being legal heirs of the same as well as for permanent injunction restraining the present respondent no.1 from disturbing the peaceful possession of Flat No.3 and 4 of ownership and occupation of the appellant No. 1 and 2. Hence, the claim and the relief prayed for is not for obtaining "possession" of the flat property and the averments in the plaint are to the effect that the appellants are in peaceful possession and the said possession of Flat No. 3 and 4 may not be disturbed by the present respondent No.1. Whereas in the present application and appeal, the appellants have sought relief for possession of not only property bearing flat no. 3 and 4 but also for property bearing flat no. 1, 5 and 6. The said aspect is contrary to the prayers as prayed for in the suit as well as Ex.5 application. That the appellants have misused the process of law by altogether changing their prayers in the appeal which is contrary to the prayers sought in the Exhibit 5 application and the plaint. 1, 5 and 6. The said aspect is contrary to the prayers as prayed for in the suit as well as Ex.5 application. That the appellants have misused the process of law by altogether changing their prayers in the appeal which is contrary to the prayers sought in the Exhibit 5 application and the plaint. That, the relief which is neither claimed in the Ex.5 application nor in the plaint cannot, now be sought by the appellants. Hence, the civil application along with the appeal is not maintainable. 6.4 He submitted that the above preliminary contention has been taken in the affidavit in reply of the Respondent in the present appeal, however the present appellants have not denied such contention and hence the same is to be treated as admission on the part of the appellants. 6.5 He submitted that appellants with mala fide intentions have not disclosed the true and correct set of facts before the Ld. Trial Court and have not approached the Ld. Trial Court with clean hands. The said aspect is not justified in the appeal. 6.6 He submitted that the Appellant in the plaint pleaded that they have possession of the property bearing Flat No.3 and 4 and further sought relief for permanent injunction restraining the present respondent no.1 from disturbing the peaceful possession of said property bearing Flat No.3 and 4. Whereas in Para 3 of the plaint, the appellants have categorically stated that the Appellant No. 1 is residing in Pune and Appellant No.2 is residing in USA. It is submitted that the Ld. Trial Court after perusing the records at exhibit 4/9, 4/ 10 and 4/21 as well as after perusing the report of the court commissioner has passed the order below exh.6 & 7 whereby Id. Trial court observed that on the date of filing of the suit, the appellants were not in possession of the suit property. Hence, Id. Trial court rightly rejected the Exhibit 5 application on the ground that the appellants have not approached the Ld. trial Court with clean hands. It is submitted that the suit itself is not maintainable on the ground that partial partition is sought without bringing to the notice of the court and record/plaint that there exists HUF property at Pune where the Appellant No.1 resides. Moreover, undisputedly the said property belongs to HUF and respondent is the Karta of the HUF. It is submitted that the suit itself is not maintainable on the ground that partial partition is sought without bringing to the notice of the court and record/plaint that there exists HUF property at Pune where the Appellant No.1 resides. Moreover, undisputedly the said property belongs to HUF and respondent is the Karta of the HUF. In the instant case, partition is sought without enlisting the other properties belonging to HUF. Hence, the suit itself is not maintainable and suffers from vice of suppression of material facts and not approaching the court with clean hands. 6.7 He submitted that it is trite in law that injunction is an equitable remedy as well as it is governed by law. Therefore, equitable principles assume importance in granting or rejecting injunction. Equitable principle is that, he who seeks equity must come with clean hands. In support of the submission, Mr. Jasani relied upon the judgments produced herein :- a. 2003 (2) ALL M.R. 254 Bom. "One must come with clean hands to claim the discretionary relief of injunction" b. Harcharanjit Singh Thind .. vs .. DikshaThind reported in 2008 (3) Mah.L.J. 587 "Relief of temporary injunction is a discretionary and equitable and therefore, the party who is found to be guilty of suppressing of the material fact from the Court, does not deserve to get any discretionary relief much less an order of temporary injunction." 6.8 He submitted that it is settled position of law that a person out of possession, cannot seek relief of injunction simpliciter, without claiming relief of possession. In the present case, admittedly the possession of the property in suit was not with the appellants at the time of filing of the suit and even thereafter the appellant sought injunction restraining the present respondent no. 1from disturbing the peaceful possession of property bearing Flat No. 3 and 4. It is submitted that the court commission undertaken by the court commissioner at Ex. 10 on 08.08.2016 makes a categorical statement that Flat property mentioned as B1 (Flat no. 1) and C1 (Flat no. 2) are in the possession of the Def. No.1 and it is found that he is residing in the same and the household articles belonging to the Def. No.l are found in the property. The property mentioned as D1 (Flat no. 3), E1 (Flat no. 4),F1 (Flat no. 5) and G1(Flat no. 1) and C1 (Flat no. 2) are in the possession of the Def. No.1 and it is found that he is residing in the same and the household articles belonging to the Def. No.l are found in the property. The property mentioned as D1 (Flat no. 3), E1 (Flat no. 4),F1 (Flat no. 5) and G1(Flat no. 6) were found to be locked and the key of the same being with the Def 1, the same were opened and shown to the court commissioner. Moreover, the categoric observation of the court commissioner is that the flat property mentioned as D1 and E1 were found to be in abandoned condition and are found to be not in the condition fit for habitation i.e not cleaned or maintained and F1 and G1 were found to be in well maintained condition. 6.9. He submitted that in view of the above as well as in absence of any prima facie proof tendered before the court below in support of the claim of the appellants that the suit property is in possession of the appellants and that there being no averment or prayer to the effect that the possession of the said property to be handed over to the appellants, the appellants cannot seek for permanent injunction against the respondent no. 1. That, there being no prayer of possession in the plaint of interim relief application, the suit as well as the application suffers from the vice of Order 7 rule 5 of CPC. In absence of the fulfillment of the parameters laid down in Order 7 rule 5, meaning thereby in absence of specific relief which the appellant claim, either simply or in alternative, no relief can be granted. The appellants were never in possession of the suit property and therefore, there is no question of protecting their possession arises. 6.10 He submitted that in view of the above, the ld. Court has rightly rejected Exhibit 5 application as the appellant was seeking relief of injunction without claiming relief of possession. Itis further submitted that the ld. Trial court in its order has even granted liberty to the appellants who have not sought any relief of possession to amend their plaint in accordance with law. It is submitted that no application has been yet preferred by the appellants for amendment of plaint. Itis further submitted that the ld. Trial court in its order has even granted liberty to the appellants who have not sought any relief of possession to amend their plaint in accordance with law. It is submitted that no application has been yet preferred by the appellants for amendment of plaint. In support of the above submission advanced, the respondent relies upon the below stated judgments :- a. Anathula Sudhakar Vs. P Buchi Reddy, 2008 LawSuit(SC) 1186. (Emphasis laid on para 11) b. Dalpat Kumar Vs Prahlad Singh and Ors, [ (1992) 1 SCC 719 ] 6.11 He submitted that it is settled position of law that the appellate court can interfere with the discretionary order passed by the trial court only in exceptional circumstances and the appellate court cannot interfere with the exercise of discretion of the court of the first instance and substitute its own discretion except, where the discretion has been shown to have been exercised arbitrarily, capriciously, perversely or where the court has ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. 6.12 He submitted that in the present case, the Ld. Trial Court has rightly exercised the discretionary powers while passing the order below exh.6 & 7 and therefore, no interference is required at this stage. The observations made by the lower court to the effect that the appellant has not approached the court with clean hands and has falsely pleaded that they are in possession are true and correct and the said observations being based on evidence and the order having being passed exercising discretionary powers, requires no interference. 6.13 He submitted that the ld. Trial court has judiciously interpreted and read document at Ex.4/2 in itstrue spirit and therefore, the observations and the findings in Para. 7 of the judgment deserves no interference. 6.14 He submitted that the Id. Trial court has rightly observed that relief of possession has not been sought by the appellant and thereafter granted liberty to amend their plaint in accordance with law. Hence, without prejudice to the rights and contentions of the answering respondent, the appellant may amend the plaint and seek appropriate relief thereafter and therefore, the order passed by the court below which has also taken care of the interest of appellants, at this juncture, with the original prayers in the plaint, requires no interference. Hence, without prejudice to the rights and contentions of the answering respondent, the appellant may amend the plaint and seek appropriate relief thereafter and therefore, the order passed by the court below which has also taken care of the interest of appellants, at this juncture, with the original prayers in the plaint, requires no interference. 6.15 He submitted that appellants does not have any prima facie case. It is further submitted that the ld. Trial court has directed to maintain status-quo, hence there is no possibility of suffering any irreparable harm and injury to the appellants as alleged. Moreover, there is no possibility of irreparable harm and injury and therefore also all the three celebrated principles are not in favour of the plaintiffs present appellants. 6.16 In support of the above submission, the respondent relies upon the below stated judgments: a. Ghanshyambhai Dhirubhai Barvaliya Vs. Rasikbhai Dhirubhai Ambaliya & Ors ., Appeal from Order no. 457 of 2016. "the appellate court can interfere with the discretionary order passed by the trial court only in exceptional circumstances and the appellate court cannot interfere with the exercise of discretion of the court of the first instance and substitute its own discretion except,where the discretion has been shown to have been exercised arbitrarily, capriciously, perversely or where the court has ignored the settled principles of law regulating grant or refusal of interlocutory injunctions." (Para 18) b. Matrix Telecom Pvt. Ltd. Vs. Matrix Cellular Services Pvt. Ltd ., 2011 (3) GLR 1951 (Para 6 and 6.1) c. Wonder Ltd. &anr. Vs. Antox India Pvt. Ltd ., 1990 (Supp.) SCC 727 (Para 9) d. Jasoda Indralal Vadhva Vs. Hemendrabhai Kakulal Vyas & Ors ., AIR 2009 (NOC) 1999 (GUJ.) (Para 13) 6.17 He submitted that the ld. advocate for the appellants has misled this Court by arguing that the ownership of the flat no. 3 and 4 are not in dispute and that the Appellants are the sole owners of the Flat no. 3 and 4. It is submitted that the Respondent in para 12 of the Written Statement filed before Ld. Trial court, Ahmedabad in Civil Suit No. 1533 of 2016 has categorically disputed the sole ownership of the appellants of Flat No. 3 and 4. It is also pertinent to mention that the Ld. 3 and 4. It is submitted that the Respondent in para 12 of the Written Statement filed before Ld. Trial court, Ahmedabad in Civil Suit No. 1533 of 2016 has categorically disputed the sole ownership of the appellants of Flat No. 3 and 4. It is also pertinent to mention that the Ld. Trial Court, after perusal of the pleadings, framed issues on 08.03.2021 wherein issue no.2 is for the plaintiffs to prove whether they are the sole owners of the Flat no. 3 and 4. The issue no. 2 framed by the Ld. Trial Court is produced herein below: "2. Whether the plaintiffs prove that as per the Partition Deed, their mother Kumudben was given Flat No. 1, Flat No. 2 was allotted to the defendant, Flat no. 3 was allotted to plaintiff no. 1, Flat No. 4 was allotted to plaintiff no. 2 and Flat no. 5 and 6 were allotted to their deceased Father Subodhbhai Gajjar?" 6.18 He further submitted that the ld. Advocate for the appellants has misled this Court by arguing that the partition deed pertains to the constructed flats. It is submitted that the partition deed which is heavily relied upon by the appellants pertains to only land and not the constructed flats. The Partition Deed was executed before the commencement of construction of flats. Another document which is heavily relied upon by the appellants is the property card which also pertains to the land and not the constructed flats. It is the contention of the Respondent that only the Respondent and his father financed in the construction of the flats in question and the appellants have not paid a single rupee for construction of the flats. It is submitted that ld. Trial Court, after appreciating such contention of the Respondent, has framed issue no. 6 which is produced herein below: "6. Whether the defendant proves that he rendered financial assistance to raise construction over suit property which had fallen into the share of the plaintiffs?" He therefore submitted that the interim relief as prayed by the appellants deserves to be rejected as the same being subject matter of the trial. 6.19 He lastly submitted that considering the submissions and judgments referred to herein above, the present application along with the appeal deserves to be dismissed. 6. Heard Ms. 6.19 He lastly submitted that considering the submissions and judgments referred to herein above, the present application along with the appeal deserves to be dismissed. 6. Heard Ms. Trusha Patel, the learned counsel appearing for the appellants and Mr.Shrenik Jasani, the learned counsel appearing for Mr. Vimal Purohit, learned advocate for the respondent. 7. The controversy in the present appeal from order is between real brothers. In such circumstances the Coordinate Bench of this Court by order dated 25.10.2019 relegated the parties to the mediation center to explore the possibility of amicable settlement. 8. The mediation center submitted report dated 12.12.2019 stating that the mediation was unsuccessful. In view of above, this Court is required to consider the dispute between the parties on merits. 9. The appellants filed the civil suit seeking partition of the suit property by metes and bounds. Further the appellants are the owner and occupier of the said suit property. Further it is the case of the appellants that the appellants are in possession of Flats No.3 and 4 as they are the owners of Flats No.3 and 4 and the defendants be restrained from creating any obstruction in the passage leading to Flats No.3 and 4. During the course of hearing this Court has gone through the documents which are produced alongwith appeal memo. In view of this Court, the report by the Court Commissioner would be germane for adjudicating the present appeal from order. (a) The relevant extract of the Court Commissioner report dated 8.8.2016 reads thus :- “There is a ladder between the ‘B’ and ‘C’ part which separates them. The ladder leads to the first floor. To the South of the ladder, flat no.3 is located which is referred hereinafter as ‘D’. As stated, ‘D’ was closed, the respondent opened it with the keys he was having when he was asked to do so. In the stated ‘D’ old scrap is found lying. Some articles are also lying in ‘D’ which were procured by the father of the parties out of his hobby. It includes automobile and wooden-work tools. The only part that separates the stated Mark – ‘B1’, ‘D1’ and ‘F1’ is the veranda. The veranda in ‘B1’ is not located in ‘D1’ and ‘F1’. Mark – ‘B1’ and ‘B2’ indicate the main hall and the veranda respectively. Mark – ‘D1’ and ‘F1’ do not have any veranda like part. It includes automobile and wooden-work tools. The only part that separates the stated Mark – ‘B1’, ‘D1’ and ‘F1’ is the veranda. The veranda in ‘B1’ is not located in ‘D1’ and ‘F1’. Mark – ‘B1’ and ‘B2’ indicate the main hall and the veranda respectively. Mark – ‘D1’ and ‘F1’ do not have any veranda like part. Which means that ‘D1’, ‘F1’ is the bigger hall than ‘B1’. There are two bathrooms besides ‘D1’. Whereas in the ‘B1’, there is only one bathroom. A cupboard is lying in ‘D1’. The part of ‘E1’ is located opposite ‘D1’ which also contains two bedrooms, a hall, two balconies, one small room and two toilet-bathrooms. The scrap like articles are lying therein. Climbing the ladder on the stated ‘E1’, the place of ‘F1’ is accessed, which contains a main hall, two bedrooms, one lavatory and one attached toilet-bathroom. A small room has been constructed therein. One of the two bedrooms contains the attached toilet-bathroom. The other room does not have attached toilet-bathroom. A balcony to the North of the stated main hall and one other balcony to the North of the bedroom are located. In the stated main hall, four chairs, a table, a cupboard and household articles are seen. There is a terrace above the stated six flats which is open to sky, uncovered. A water tank has been constructed therein. As the door of the disputed property was closed, the respondent was asked to open the door, which he opened with the keys he was having. The part of ‘B1’ and ‘C1’ in the disputed property was unlocked, where the respondent resides. The parts stated as Mark – ‘D1’, ‘E1’, ‘F1’ and ‘G1’ were locked. The respondents had opened all the locks with the keys he was having and showed the premises and only thereafter, we the Court Commissioner could undertake the procedure. The respondent resides in the stated ‘B1’ and ‘C1’ and his household articles are found therein. At the part stated as ‘D1’ and ‘E1’, no cleaning has been done neither it is properly maintained and ‘F1’ and ‘G1’ are in locked condition, which means they are cleaned routinely. Whereas at the part of ‘D1’ and ‘E1’, cleaning is not done.” 10. At this stage, it is important to refer to the pleadings as pleaded by the appellants in the plaint. Whereas at the part of ‘D1’ and ‘E1’, cleaning is not done.” 10. At this stage, it is important to refer to the pleadings as pleaded by the appellants in the plaint. Paragraph-14 of the plaint is produced thus :- “14. We – the plaintiffs have a prima facie case and a balance of convenience is in favour of us. If an injunction as sought is not granted, we will suffer irreparable loss. Further, as the respondent is retired military officer and his son is a serving naval officer, he is creating obstruction in the legal duty of police by behaving domineeringly with them and adopting unscrupulous influence and unlawful practices. He has thrown us out from the house owned and occupied by us since February 2016 and is not letting us enter. He keeps the four gates around the compound wall of Twins Apartment closed using chain and lock. We – both the plaintiffs have kept keys of our flat No.3 and 4 with the plaintiff No.1 – our father who lives in flat No.1 on the ground floor. In addition to it, our documents, household items, clothes etc. are also kept in the flat and we are not able to enter the flat due to obstructions by the respondent. Despite resorting to judicial proceedings for a long time being a responsible citizen of India, police is not helping us and therefore, both of us – the plaintiffs have to stay in the above mentioned guest house at Ahmedabad despite having our own house. Further, as the respondent is elder brother of both of us - the plaintiffs, he should take care of us. Instead, he has prevented us from using our own house and has been conspiring to grab the jointly owned properties. Therefore, as the balance of convenience is in favour of us - the plaintiffs, an injunction, in the form of order and directives, should be granted in favour of us – the plaintiffs.” 11. In the case of Matrix Telecom Pvt. Ltd., vs. Matrix Cellular Services Private Limited, reported in 2011(3) GLR 1951 , the Court in Paragraphs 17 and 18 held as under :- “6.0 Before proceeding further it is required to be noted that the present appeal is against the rejection of interim relief and the main suit is still pending. In the case of Matrix Telecom Pvt. Ltd., vs. Matrix Cellular Services Private Limited, reported in 2011(3) GLR 1951 , the Court in Paragraphs 17 and 18 held as under :- “6.0 Before proceeding further it is required to be noted that the present appeal is against the rejection of interim relief and the main suit is still pending. If this court elaborately deals with the matter on merits it is likely that the same would prejudice the case of either side. Therefore, it is well settled law that this Court is not required to go into the merits of the entire matter at this stage and what is required to be seen is whether the appellant - plaintiff has made out a prima facie case or not for grant of interim injunction. 6.1 It is required to be noted that it is well settled law that the Appellate Court may not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion.” 11.1 In the case of Amarben @ Samarben legal heirs and Wd/o of Dec. Ramjibhai Manekbha vs. Laxmanji Bhikaji Thakor, reported in 2014 JX (Guj.) 1137, the Court held in paragraphs 17 and 18 as under :- “17. Ramjibhai Manekbha vs. Laxmanji Bhikaji Thakor, reported in 2014 JX (Guj.) 1137, the Court held in paragraphs 17 and 18 as under :- “17. So, in light of the limited powers of this Court, the Appellate Court can interfere with the discretionary order passed by the trial Court only in exceptional circumstances and the Appellate Court cannot interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except, where the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. In nutshell, an appeal against exercise of discretion is said to be an appeal on principle. To put it differently, the Appellate Court cannot reassess the entire evidence so as to come to its own conclusion contrary to the conclusion arrived at by the trial Court, if two views are possible. 18. While parting with the order, it is clarified that this Court has examined the impugned order passed by the learned trial Judge within the limited scope of provisions of Order 43 Rule 1(r) of the Code, whereas the main controversy involved in the suit is at large before the trial Court to be adjudicated through full-fledge trial. Therefore, the learned trial Judge shall not be influenced by any observations recorded in the impugned order and observations recorded by this Court herein above while deciding the suit at the end of trial. The findings recorded either by the trial Court or by this Court at interlocutory stage of the suit are tentative in its nature and the learned trial Judge shall decide the case on its merit and as per evidence that may be led during the course of trial and decide the suit in accordance with law.” 12. Though Ms. Patel, learned counsel appearing for the appellants vehemently submitted that the appellants are in possession of the Flats No.3 and 4, it transpires from the plain reading of the plaint that the appellants on their own volition stated in paragraph-14 that the defendant forcefully dispossessed the appellants in the month of February, 2016. Therefore, clearly the appellants are not in possession of the suit property. Therefore, clearly the appellants are not in possession of the suit property. On perusal of the report of the Court Commissioner dated 8.8.2016 it is borne out that the keys of the disputed flats were with the defendant – respondent and the defendant – respondent is in possession of the suit property. In view of this Court, no further adjudication is required at this stage. Without entering into other submissions on merit, the order dated 22.7.2019 passed by the City Civil Court, Ahmedabad below Ex.6 & 7 in the Civil Suit No.1533 of 2016 requires no interference. 12.1 The trial Court is directed to consider the expeditious hearing of the suit in view of the peculiar facts and circumstances of the present suit. 13. In view of above, the present appeal from order fails and the same is disposed of. Consequently the civil application stands disposed of.