IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.563 of 2008 MAHESH CHANDRA SHARMA & ANR Versus SURESH CHANDRA THAKUR & ORS 8. 06.07.2010 Heard learned counsel for the plaintiff-appellant. None turned up on behalf of the defendant-petitioner in spite of providing ample opportunity. This appeal has been preferred against order dated 20.8.2008 passed by First Sub-Judge, Samastipur passed in Title Suit No. 56 of 2008, refusing the prayer made by plaintiff-appellant for an order to restrain the defendants from making construction and changing the status-quo of the suit land. During course of argument, learned counsel for the appellant drawing attention towards Para 6 of the impugned order, stated that court below after hearing the parties and consideration of the materials available, though found Prima facie case in his favour but simultaneously stated, that there is nothing on record to show that defendants are trying to change status of the suit land, whereas in their show cause dated 25.5.2008 in Para 13 has stated that after purchase of one of the suit plot i.e. Plot No. 1554, which was earlier paddy growing land they have filled in the lower portion after bringing earth from outside pillars have also been fixed and they intent to construct the house very soon but this aspect by way of admission of the defendants has been over looked by the court below. The suit has been filed with respect to two suit plots i.e. Plot - 2 - Nos. 1254 and 1680 and as per submissions on behalf of the plaintiff- appellant, are adjacent and mixed-up, having no separate identity and for several decades coming in possession of plaintiffs by virtue of different transactions since before. Defendant-respondents in spite of entering into appearance in this appeal did not turn up to make any submission. Taking into consideration all such aspects and undisputed position that lands in dispute were culturable one and some of the defendants intent to make construction over one of the plots for that purpose earth, filling and fixing of pillars has already been done, there is nothing more regarding any construction for the present. It is not clear that what is the actual progress at the suit plots. In view of the above the court below shall by issuing commission at the cost of plaintiffs obtain a report about actual existing affairs with minute details and photographs and if any construction is going on, the party doing so may be permitted to proceed with the construction only on filing undertaking to remove the same at its own cost, or shall not claim cost of the construction, but shall part with the land, with construction, in case suit is decided against him, with the above direction and observation, this appeal stands dismissed at admission stage itself. Praveen (Akhilesh Chandra, J.)