1 mpt . IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5567 of 2008 Shri Mansing S. Patil & ors. .. Petitioners versus Shri Jaywant S. Patil .. Respondent ... Mr.Rahul S. Kulkarni for the petitioners. Mr.S.M.Kamble for the respondent. CORAM : A.M.KHANWILKAR, J DATED : 12th September 2008 P.C.: 1. Heard counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr.Kamble waives notice for the respondent. As short question is involved, petition is taken up for final disposal forthwith by consent. 3. This writ petition under Article 227 of the 2 Constitution of India takes exception to the judgement and order passed by the Civil Judge, Jr. Division, Wadgaon dated 21st June 2008 below Exhibit 126 in RCS no.96 of 1995. The trial court has rejected the application preferred by the petitioners- defendants to permit the defendants to continue with the construction activity on the suit site without prejudice to the rights and contentions of the parties and entirely at the risk of the petitioners. The justification given by the trial court amongst others is that if the petitioners are allowed to carry out construction of permanent nature, that will create complication in future in the event the respondent plaintiff was to succeed. This reason does not commend to me. In that, if the petitioners were to carry out construction entirely at their risk and cost and without prejudice to the rights and contention of the parties, no prejudice will be caused to the respondent plaintiff. In addition, however, it would be open to the court to impose condition on the petitioners that if the court so directs at the end of the trial, they shall forthwith remove the entire structure erected by them on the disputed land and restore the land to its original position as is where is basis on the date of registered sale deed executed in favour of the petitioner in that behalf. Besides, the petitioner would be liable to compensate the 3 respondent plaintiff for the wrongful user of the land for the relevant period. In addition, the petitioner can be put to condition that they shall not create any third party, rights title or interest in the suit land or mortgage the said property or create any encumbrance thereto during the pendency of the suit. The said arrangement would meet the ends of justice. In that, if the petitioners were to eventually succeed in the pending suit, no prejudice would be caused to the respondent plaintiff. On the other hand, if the respondent plaintiff was to succeed, the structure erected by the petitioner at their cost would not only be removed if so directed by the court but in addition, the petitioner would be liable to compensate the respondent plaintiff for the wrongful use of the suit land during the relevant period in terms of liberty given by the court. 4. Accordingly, this writ petition succeeds on the above terms. The impugned judgement and order is set aside and instead the application Exhibit 126 is allowed on above conditions which the petitioners have accepted through counsel. Petitioners undertake to abide by each of the condition referred to hither to. Needless to observe that this order is not an expression of opinion on the merits of controversy to be adjudicated in the pending suit between the 4 parties. 5. All questions in that behalf will have to be addressed on its own merits in accordance with law. 6. It is further made clear that the liberty given to the petitioner is not an expression on the issue that the proposed construction to be undertaken by the petitioner is in conformity with the relevant Development Control Rules. In other words, the petitioners will have to obtain prior permission of the municipal authority before commencing the construction activity. (A.M. KHANWILKAR, J)