KBP 4624-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4624 OF 2009 Yshwant Shivram Jagtap (deceased through Lrs.) Smt.Radhabai Yashwant Jagtap and ors. ..Petitioners Vs. Sau.Sulochana Dattu Aher and ors. ..Respondents ......... Mr.M.M.Sathaye, for petitioners, for petitioners. Ms.Chaitrali Deshmuh, for respondent nos.1, 3 and 4. ......... CORAM : A.S.OKA, J.. DATE : 31 th August, 2009. P.C. : 1] Heard learned counsel for the petitioners and learned counsel for the respondents. The respondents are original plaintiffs and the petitioners are the legal representatives of the defendants. A suit for declaration and injunction was filed by the respondents. The respondents claim to be entitled to 3/4 th share in the land bearing gat number 92 of village Kokangaon Budruk. The area of gat No.92 is about 83 Ares. An area of one Are out of 83 Ares is the Pot-kharaba land. The case of respondent was that they were the owners of area of 63 Ares and the original defendant was the owner and in possession of area of 20 Ares. The Trial Court found that the respondents were in possession of area of 41 Ares out of the gat No.92. The Trial Court, therefore, granted declaration of possession in respect of area of 41 Ares in favour of respondents and restrained the petitioners from interfering with possession of respondents over the area of 41 Ares. The said judgment and KBP 4624-09.sxw 2 decree of trial court was passed on 23 rd February, 1999. 2] An appeal was preferred by the petitioners in the year 2001 along with an application for condonation of delay. In the said appeal, an application at Exhibit 14 was made for stay of execution and operation of the decree. By order dated 10 th November, 2003, the District Court stayed the further proceedings of the execution application till the next date i.e. 25 th November, 2003. After 25 th November, 2003, there was no interim relief operating in favour of the petitioners in the said appeal. 3] An application at exhibit 61 was filed by the petitioners on 6 th February, 2009 contending that on the basis of the impugned decree, the respondents were obstructing the possession of the petitioners and therefore the application exhibit 14 for stay be taken up forthwith for hearing. An application was made at exhibit 62 praying that the ad-interim relief of stay be granted till the final disposal of the application exhibit 14. By the impugned order dated 9 th April, 2009, the learned District Judge rejected the applications at exhibits 14, 61 and 62 made by the petitioners. 4] The learned counsel for the petitioners submitted that though the ad- interim relief of stay was not operative from 25 th November, 2003, on the basis of the decree, the respondents never obstructed the possession of the petitioners over the entire land bearing gat No.92 and therefore the applications exhibits 61 and 62 were made in February, 2009 only when obstruction was sought to be made by the respondents. He submitted that the learned District Judge has noted that revenue record of year 2008-2009 shows the possession of the petitioners over the entire land bearing gat no. 92. He submitted that the decree of the trial court is vague in the sense that it is merely stated that the respondents are in possession of area of 41 Ares towards northern side out of gat no.92 and the exact area which is allegedly in their possession has not been ascertained. He, therefore, submitted that KBP 4624-09.sxw 3 a clear case was made out for grant of stay. 5] The learned counsel for the respondents has supported the impugned judgment and order. 6] I have carefully considered the submissions. The decree of the Trial Court is passed on 23 rd February, 1999. An appeal along with an application for condonation of delay was filed in the year 2001. It must be stated here that from 10 th November, 2003 to 25 th November, 2003 i.e. only for a period of 15 days, a limited ad-interim relief was operating in favour of the petitioners. The limited ad-interim relief was not stay of operation of the decree but the stay of proceedings of the execution application. Thus, the decree of perpetual injunction passed by the trial court on 23 rd February, 1999 is operative for last more than 10 years. Therefore, there was every reason for the District Court to reject the prayer for stay. If the case of the petitioners is that on the basis of the decree of injunction, the respondents are trying to obstruct the possession of the petitioners over the remaining area of 41 Ares out of gat no.92, the petitioners can always apply for relief of temporary injunction. Such application can be always made by the petitioners without prejudice to the rights and the contentions in the appeal. It is obvious that in such application, the petitioners can claim relief in respect of area of 41 Ares in respect of which no decree has been passed by the Trial Court. 7] Subject to what is observed above, no case is made out for interference. Writ Petition is rejected. All contentions of the parties on merits of the pending appeal are kept open. Hearing of the appeal is expedited. ( A.S.OKA, J. )