1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1440 OF 2009 Shri Kolhapuri Bandu Lakade. ..Petitioner. V/s. Shri Yallappa Chinappa Lakade. ..Respondent. Mr.G.S.Godbole i/b. Mr.Ashok B. Tajane for Petitioner. Mr.Sandeep Phatak i/b. Smt.Alka C. Thite for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 6, 2009. DATE : MARCH 6, 2009. DATE : MARCH 6, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. The Petitioner/Plaintiff filed suit for declaration and injunction. By way of interim relief Plaintiff prayed that the Respondent/Defendant be restrained from carrying on unauthorised construction. The two Courts below have found that the Petitioner was claiming right in respect of CTS No.1894, which is founded on the Sanad issued by the Then Provincial Government. The Courts below have found that the defendant was in occupation of room, which was constructed by his grand-father on part of Survey No.315B and 317B/1 and the lands on Survey 2 Numbers were granted to Vaidu Samaj. In other words, the Courts below have proceeded on the finding that the structure of the tenant was on separate land unconnected with the land in respect of which the Petitioner/Plaintiff was claiming right i.e. City Survey No.1894. On this finding no fault can be found with the conclusion reached by the two Courts below of rejecting the prayer for interim relief claimed by the Petitioner/Plaintiff. 3. Before this Court Counsel for the Plaintiff submits that the defendant was asserting right in respect of the land bearing City Survey No.1894. Counsel for the Respondent on instruction states that the Respondent was asserting right only in respect of 315B and 317B/1, which is not part of City Survey No.1894. In view of the finding recorded by the two Courts below as referred to above and the stand taken by the Respondent before this Court, the apprehension of the Petitioner will have to be turned down, as misplaced. 4. Assuming that at the end of the trial, the Court were to take the view that Survey No.315B and 317B/1 was in fact part of City Survey No.1894. In that case the Respondent would be bound to remove the 3 structure put up by him on the disputed land and also compensate the Petitioner by way of mesne profits, if the Court were to so direct. Counsel for the Respondent on instruction states that the Respondent is willing to abide by this condition. The Respondent assures through Counsel that the structure put up on the disputed land, if found to be owned and possessed by the Petitioner would be removed and the Petitioner will be compensated for the user of the disputed property. That assurance is accepted. 5. In view of the above, no further enquiry into this matter is warranted. 6. Needless to observe that the Respondent would be entitled to carry on construction/repairs in the structure standing purportedly on Survey No.315B and 317B/1 subject to and consistent with the permission granted by the Municipal and Revenue Authority. 7. At this stage, Counsel for the Petitioner submits that the Petitioner has already moved the Trial Court for measurement and demarcation of the disputed lands, which application will have to be decided expeditiously. The Petitioner is free to make that request to the Trial Court which will be 4 consider the same appropriately. 8. Needless to observe that in the event after measurement, it is noted that the structure put up by the Respondent is in fact part of the City Survey No.1894, it will be open to the Petitioner to ask for appropriate relief on that basis, which will be considered on its own merits. 9. Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)