1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.576 OF 2005 WITH CIVIL APPLICATION NO.1007 OF 2005 Shri Bhikaji Bhausaheb Powar ..... Appellants & Ors. vs. Shri Ganpatrao Shankar Waskar ..... Respondent Mr.S.V. Sadavarte,Advocate for Appellants Mr.A.B. Borkar, Advocate for respondent. Coram : Smt. R.P.SondurBaldota, J. Date : 11thJune 2009 PC :- 1. This Second Appeal is directed against the judgment and order dated 7th June 2004 passed by the Court of 7th Ad-hoc Additional District Judge, Kolhapur in Regular Civil Appeal No.75 of 1998. The appellants are the original plaintiffs and respondent is original defendant. 2. Respondent was the owner of house property bearing CTS No.256/1A consisting of ground floor shop premises admeasuring 262 square feet. The plaintiffs were the tenants in respect of the shop. Respondent proposed to develop his property and construct a commercial complex thereon. He entered into an agreement with the appellants on 12th November 1992 that he would construct a new building and give shop of equivalent area to the appellants. Pursuant to the agreement, the appellants handed over possession of the shop to the respondent. The shop was demolished for the purpose of new construction. However, it appears that because of 2 several difficulties including reservation of the land for the purpose of road widening, respondent was unable to carry on the work of development. 3. Therefore, the plaintiffs filed suit being Regular Civil Suit No. 1191 of 1994 against the respondent for direction to the respondent to hand over possession of shop admeasuring 135.50 square feet as per the agreement. Prayer clause (b) was for mandatory order to the respondent to construct a shop at the site as per the old dimensions and hand over possession to the appellants. By prayer clause (c), the appellants sought permanent injunction to restrain the respondents from carrying on any new construction, other than the construction as proposed. By the judgment and decree dated 30th December 1997, the suit was disposed of partly decreeing the same. The respondent was directed to deliver vacant possession of the land admeasuring 135.50 square feet which direction has been complied with. The respondent was further directed not to carry out any construction in that area. The appellants felt aggrieved by the judgment and decree, as mandatory order as regards construction was refused to them and filed Regular Civil Appeal No.75 of 1998. The respondent had also preferred appeal being Regular Civil Appeal No.401 of 1998. Both the appeals were dismissed by the District Court by the judgment and order dated 7th June 2004. The appellants have therefore filed the present Second Appeal. 4. Mr.Sadavarte, learned counsel for the appellants submits that appellants have really been left high and dry in the peculiar facts of 3 the case. He requests that the appellants be atleast be permitted to carry out construction of the shop on the land, of which he has been given possession, so that he can start his business therefrom. He states that the appellants shall handover possession of the land to the Municipal Corporation for the purpose of road widening as and when required. Mr.Sadavarte has produced photographs of the suit site showing that there are shops adjoining to the land in his possession, which are also affected by road widening. He submits that he would suffer the same fate as the other shop-holders as and when the Corporation proposes to widen the road. The request of Mr.Sadawarte cannot be considered. Since the land is already reserved for road widening, there cannot be any construction thereon. In the circumstances, the appellate court have rightly refused the relief of construction to the appellants. There is no substantial question of law arising in the appeal for the purpose of consideration of the Court. Hence, the appeal is dismissed in limine. 5. In view of the disposal of the Second Appeal, the Civil Application No.1007 of 2005 does not survive, the same is accordingly disposed off. (Smt.R.P. SondurBaldota,J.)