1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.4561 OF 2011. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.Kolse Patil Madhukar G., advocate for the petitioner. Mr.P.S.Shinde, advocate for the Respondent No.2. CORAM : S.V.GANGAPURWALA,J. Date : 04.07.2011. 1. Heard. 2. The petitioner is the original plaintiff who had filed a suit for injunction. The petitioner has also filed an application for temporary injunction which came to be rejected. The petitioner preferred an appeal. The appellate Court also dismissed the appeal. Aggrieved thereby, the petitioner has filed the present Writ Petition. 3. Mr.Kolse Patil, learned counsel for the petitioner vehemently submits that earlier the suit was decreed, wherein the Respondents were 2 restrained from carrying out construction in the suit site which was adjoining to the eastern side of the house of the plaintiff. Now after the decree passed in earlier suit, the Respondents are carrying out the construction on the same place and the site, wherein the Respondents were injuncted in the earlier suit. The learned counsel submits that the photographs placed on record would substantiate the same. The learned counsel further submits that the Commissioner's report in the earlier suit and the affidavits filed are testimony of the proof of the said fact. According to the learned counsel, both the Courts have committed an error in rejecting the application Exh.5. 4. Mr.Shinde, learned counsel for the Respondent No.2 supports the order passed. 5. No doubt, the suit is decreed in favour of the petitioner in an earlier round of litigation, wherein the Respondents are injuncted from carrying out the construction on the eastern side of the house of the plaintiff and even the construction which was earlier carried out was 3 removed. 6. Both the Courts have observed that at this stage, the petitioner is not in a position to prove that the construction which is being carried out by the Gram Panchayat is on the same site. The Respondent has come with a case that it is carrying out the construction leaving 20 ft. from the eastern side of the plaintiff's house. The Courts below have found that at this stage without any other evidence, the plaintiff could not show that the construction is being carried out on the site which is prohibited in the earlier litigation. The said finding is a prima facie in nature and a plausible one. In such circumstances, the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, can not be invoked. The trial Court after the evidence is adduced by the parties would come to a definite conclusion. 7. In view of that the Writ Petition being sans any substance is dismissed. However, there 4 shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.04.07.2011. asp/office/wp4561.11