1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPEAL FROM ORDER NO. 566 OF 2006 APPEAL FROM ORDER NO. 566 OF 2006 APPEAL FROM ORDER NO. 566 OF 2006 WITH CIVIL APPLICATION NO. 732 OF 2006 IN L.C. SUIT NO. 2969 OF 2004 M/s. Pramukh Development Corporation ..Appellant (Org. Plaintif) Versus Laxmi Industrial Estate & Ors. ..Respondents (Org.defts. 1 to 3) Ms. Sindha Shreedharan with Ms.Sudha Shreedharan,Advocates, for the appellant. Mr.Anil Singh, Advocate, for Mr. D.R.Shah,Advocate for respondent No.1. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 16th February, 2008. DATE: 16th February, 2008. DATE: 16th February, 2008. P.C. P.C. P.C. 2 1. Heard learned Counsel for the appellant and respondent No.1 at length. Perused the several documents relied upon by the parties. 2. To state in brief, the appellant is the original plaintiff and the respondents are the original defendants. According to the plaintiff, they are the owner of a disputed 35 feet wide Nalla which is abutting the property purchased by respondent No.1. Both the parties have purchased the property from the same party. It appears that lay out plan was prepared sometime in 1967 and in 1972, defendant No.1 purchased the property. In 1994, the plaintiff purchased the 35 feet wide Nalla, which is to the east of the property purchased by defendant No.1. Defendant No.1 wanted to construct a culvert on that Nalla to have approach to the 90 feet wide road to the east. Therefore, the suit was filed and a Notice of Motion was taken out by the plaintiff to restrain defendant No.1 from making that construction. However, as there was no injunction operating against defendant NO.1, they have already constructed one culvert which is in dispute. Defendant No.1 claims that the Nalla was part of the property purchased by them, while the learned Counsel for the plaintiff demonstrated from the several documents that the Nalla was not purchased by defendant No.1, but it was purchased by the 3 plaintiff. Lot of correspondence has taken place which is relied upon by both the parties. In view of the fact that the culvert is already constructed and it is being used and earlier the plaintiff had failed to obtain an order restraining defendant No.1 from using that culvert, in my opinion, it will not be advisable to go into the merits of the suit and the rival contentions, which can be looked at the stage of trial and final disposal of the suit and it will also not be proper to direct demolition of the culvert pending the suit. 3. After some discussion, the learned Counsel for defendant No.1/respondent No.1 makes a statement that as security for protecting the interest of the plaintiff, the defendant no.1 is willing to deposit an amount of Rs.50 lakhs with the trial Court. 4. Therefore, in my opinion, the Appeal may be disposed of with the following directions :- (i) Defendant No.1 shall deposit an amount of Rs.50 lakhs with the trial Court within three weeks from this day and that amount shall be invested in fixed deposit with some Nationalised Bank for a period of one year and the same may be renewed from time to time as may be 4 necessary. (ii) As the construction of culvert was undertaken and completed pending the suit, the plaintiff shall be at liberty to make appropriate amendment to the plaint and if plaintiff amends the plaint, the defendant NO.1 shall also have right to make amendment in the written statement. (iii) In case the plaintiff succeeds in proving their title over the disputed Nalla, the trial Court may pass appropriate order to grant appropriate relief in the given circumstances. The trial Court may also compute the compensation which may be required to be paid by defendant No.1 to the plaintiff for the wrongful construction and wrongful user of the land of Nalla belonging to the plaintiff pending the suit. Such compensation may be paid and satisfied out of the amount which will be deposited and the interest which may accrue thereon. (iv) The deposit shall be without prejudice to the claims and contentions of the defendant 5 No.1. All the contentions of both the parties are left open. (v) The trial Court shall dispose of the suit on its own merits without being influenced by any observations made in the impugned order of Notice of Motion or by this order or by any other order which might have been passed on any application or proceeding of interim nature. (vi) Both the parties shall be at liberty to put up notice board on the Nalla clearly indicating that the ownership of the land of the Nalla is in dispute in Suit No.2969 of 2004 pending before the City Civil Court, Mumbai. 5. As the Appeal itself is disposed of, the Civil Application does not survive and stands disposed of accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)