1 SA 720.2010 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 720 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. Milind Patil, Advocate for the appellant. Mrs. R.K.Ladda, Assistant Govt. Pleader for State. .................... CORAM : S.V. GANGAPURWALA, J. DATE : 01/12/2010 PER COURT : 1. This is plaintiff’s Second Appeal. 2. The plaintiff had filed Suit for simplicitor injunction against the respondents restraining them from interfering in the possession of the plaintiff. The Trial Court as well as the lower appellate Court dismissed the Suit. The plaintiff has assailed the said Judgment in the present Second Appeal. 3. Mr. Milind Patil , the learned counsel for the appellant contended that prior to the filing of the Suit, the plaintiff had filed Writ Petition before this Court bearing Writ Petition No. 1263 of 1993. This Court vide Order dated 19/4/1993 had passed order, wherein the Collector was directed to consider whether the land of the petitioner was acquired for the purpose of road and whether any 2 SA 720.2010 joint measurement of the land had already been taken and if not to take joint measurement of the land, of which the possession was taken. Referring to the said Judgment, Mr. Patil, the learned counsel contends that the respondents have failed to adhere to the said directions and in derogation to the said directions, have commenced the widening of the road. It was incumbent upon the respondent to first go in for joint measurement and then only to do the work of widening of the road. The learned counsel submitted that the said widening of the road is from the property of the plaintiff and as such is entitled for the relief of injunction. 4. The learned Assistant Govt. Pleader submitted that the Courts have concurrently held that the plaintiff is not entitled for injunction and the work of widening of the road is already over. As such, no injunction can be granted. 5. With the assistance of the learned counsel, I have gone through the Judgments passed by the Courts below. Both the Courts have observed that the widening of the road is over and on that count the Suit has been dismissed. 6. No doubt, in the simplicitor suit for injunction, the only consideration would be about the grant of prohibitory relief when according to the respondents, the work of widening of the road itself is over, no injunction could have been 3 SA 720.2010 clamped at that stage. However, the respondent being State, is expected to act as a model litigant. When this Court in the Writ Petition had already passed order that the respondent shall conduct the joint measurement if it is not already conducted and also to consider whether the plaintiff or its purchasers have been given compensation amount or whether they have waived their right to receive the compensation amount. No enquiry of this sort is on record to show that the order of this Court has been complied with. 7. If the present appellant conducts the measurement and as per the Judgment of this Court in Writ Petition No. 1263 of 1993, the appellant is entitled for some relief, then in that case the plaintiff is at liberty to institute appropriate proceedings as is permissible in law. 8. The Second Appeal being devoid of substantial question of law, is dismissed, however with no order as to costs. 9. In view of dismissal of Second Appeal, the Civil Application does not survive and is disposed of. [ S.V. GANGAPURWALA ] JUDGE knp/SA 720.2010