1 CAF 1614 OF 2010 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1614 OF 2010 IN FIRST APPEAL NO.633 OF 2010 Shafi Hasan Nadkar Since deceased by his legal representatives (a) Smt. Asiya Khalid Karnalkar and ors .. applicants -versus Fairzan Ahmed Azami and ors .. Respondents. Mr. P. K. Dhakephalkar, Senior Counsel i/b Mr. N. P. Shimpi, for the applicants Mr. P.M. Pradhan, for the respondent No.1 Mr. Sanjay Patil, advocate for Respondent Nos 2A to 2D CORAM: A. S. OKA, J. DATED: 20th April, 2011 P.C. 1. Heard learned Senior Counsel appearing for the applicants, learned counsel for respondent No.1 and learned counsel appearing for the respondent Nos 2A to 2D. The first prayer is for stay of execution of the decree and second prayer is for restraining respondents from interfering with possession of the applicants over the suit properties. The operative part of the impugned decree reads thus : 1. Suit is hereby decreed partly. 2. It is hereby declared that plaintiff is having legal possession over the suit property as mentioned in 2 CAF 1614 OF 2010 the description clause. 3. Plaintiff is at liberty to perform his part of contract as per the suit agreement dated 01.02.85. 4. Defendants are hereby perpetually restrained from causing interference in the possession of the plaintiff and from causing disturbance to the development work of the plaintiff in respect of the suit property. 5. The claim for damages prayed for plaintiff stands rejected. 2. Appeal has been admitted for final hearing. Appellants are the original defendant Nos 3/3 to 3/7. 3. In the impugned judgment, learned trial Judge has noted the contention of the original plaintiff that he has carried out construction of compound wall and has constructed three sheds. It is stated that the original plaintiff has secured permission to install 48 pairs of power looms and 36 pairs of power looms have been provided to defendant No. 3. It is stated that the remaining pairs of 12 power looms have been given by the plaintiff to his son. 4. During the pendency of the suit, there was an order directing the parties to maintain status quo in respect of the suit property. Now the plaintiff has succeeded in the suit and there is a finding recorded by the trial Court while passing decree that the plaintiff is in possession of the property on the basis of suit agreement. The impugned decree is operating 3 CAF 1614 OF 2010 from 20th February, 2010. 5. Therefore, at this stage, original plaintiff cannot be prevented from carrying out any further construction on the suit property in as much as the further construction will be subject to final outcome of the appeal. The plaintiff will not be entitled to claim equity on the ground that he has been permitted to carry out further construction. Only restraint which will have to be put on the plaintiff is that the original plaintiff will not create any third party rights and will not part with possession of the construction carried out hereinafter without obtaining prior permission of this Court. 6. Hence application is disposed of by passing following order. ORDER I) Even if original plaintiff (respondent NO.1) carries on any construction during the pendency of the appeal, the same will be subject to final outcome of the appeal and the plaintiff will not be entitled to claim equity on the ground that he has been permitted to carry on construction during pendency of the appeal. II) The plaintiff (respondent No.1) is restrained from creating third party rights and from parting with the possession of any portion of the structure constructed on the suit property 4 CAF 1614 OF 2010 without seeking prior permission of this Court. III) It will be open for the original plaintiff to apply this Court for grant of permission to create third party rights and/or for parting with possession of the structure/s. IV) If such application is made, it will be considered on its own merits after hearing parties after taking into consideration the terms and conditions of the suit agreement. V) Application is disposed of in above terms. VI) Hearing of the appeal is expedited. (A. S. OKA, J.)