1 caf1254 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.1254 OF 2011 IN FIRST APPEAL NO.1684 OF 2009 Juliana Joseph D Mello ...Applicant vs. Tatukulla Vayankatta Subhia Mallayya and another ...Respondents Mr.R.V.Govilkar for the applicant Mr.V.G.Peshve for the respondent nos.1 and 2 CORAM : A.S.OKA,J. DATE : SEPTEMBER 14, 2011 P.C.: 1 Heard the learned counsel for the applicant and the learned counsel for the respondents. The applicant is the original plaintiff. The applicant filed a suit for removal of encroachment allegedly made by the Respondents on the suit property. The suit property has been described in paragraph 1 of the plaint. Paragraph 1 of the plaint reads thus : All that piece and parcel of land bearing S.no.10/1/26, Plot no.65, situated at Kharadi, Tahasil-Haveili, District-Pune, admeasuring 2700 sq.ft. (250.92 sq. mtrs.) which is assessed Rs.0 Paise 02 bounded as under: Towards East : Plot no.64 2 caf1254 Towards West : Proposed colony road. Towards Sough: Plot no.68 and Towards North: Plot no.52 2 By the impugned decree, the Trial Court has dismissed the suit. 3 This is an application for interim relief. The prayer clause (a) of this application reads thus: (a)Pending the hearing and final disposal of the appeal, the respondents be restrained by an appropriate order of injunction from: I.making any construction or continuing with the construction on the suit plot of land as demarcated by the appellant or plot nos.8 and 9 which are claimed to be of the respondents. II.from alienating or selling the said plot of land i.e plot no.65 or plot nos.8 and 9 as described by the appellant and the respondent respectively; III.to induct any third party on the said plot of land or create any kind of right, title or interest in the same or part with possession of the said plot in favour of any third party. 4 An objection has been raised by the learned counsel for the respondents that injunction has been claimed not in respect of the plot no.65 but in respect of the plot nos.8 and 9. The learned 3 caf1254 counsel for the applicant submits that in fact the suit property comprises of the plot nos.8 and 9. He relies upon the report of the Court Commissioner at Exh.42 in support of his contention. 5 In the plaint, the suit property has been described as plot no.65. Perusal of the report of the Commissioner shows that the Commissioner has not at all identified plot nos. 8 and 9 as the suit property. The applicant has not carried out any amendment to the plaint seeking relief in respect of plot nos.8 and 9. Therefore, a limited interim relief which can be granted will have to be in respect of the suit property described in paragraph 1 of the plaint. The learned counsel for the applicant submitted that a Survey Officer be appointed as a Commissioner to identify the suit property. However, there is no such prayer made in this application. 6 As the appeal has been admitted, a limited protection will have to be granted. 7 Hence, application is disposed of by passing the following order : i) Till the disposal of the appeal, the respondents are restrained from creating any third party interests and from parting with possession in respect of the suit property described in paragraph 1 of the plaint. ii)If the respondents carry out construction on the suit property, no third party interests 4 caf1254 shall be created in respect of the constructed portion and the possession thereof shall not be parted with to any third party. iii)The construction, if any, carried out by the applicant on the suit property will be subject to final outcome of the appeal and the respondents shall not claim any equity on the ground that they have been permitted to carry out any construction. JUDGE