1 (CAST12758.11) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION (ST) NO.12758 OF 2011 IN SECOND APPEAL NO.563 OF 2003 1)Smt. Shantadevi Kanoji Deshmukh (Deceased) 2) Ujawalsingh Kanoji Deshmukh & Ors ...Applicants. V/s Maruti Sampati Vyavahare ....Respondent. Mr. Anand S. Patil for the Applicants. Mr. Rupesh K. Bobade for the Respondent. CORAM: V. M. KANADE, J. DATE : 24th June, 2011 P.C.:- 1. This Civil Application is taken out by the Applicant – original Respondent in the second appeal for an order of injunction restraining the Respondent, Appellant in the second appeal from carrying out any construction over the suit property. 2. Respondent is the original Plaintiff. He filed a suit seeking re-conveyance of the suit property. According to him, suit property was conveyed by conveyance which was 2 (CAST12758.11) executed in 1974 and it was executed only as security for the loan which was taken by the Plaintiff from the Defendant. Trial Court dismissed the suit. However, lower Appellate Court allowed the appeal and decreed the suit of the Plaintiff. Against that order, Defendant filed second appeal which is admitted and the judgment and order of the lower Appellate Court is stayed. 3. The learned Counsel for the Applicant submits that the Respondent has threatened that he will carry out the construction on the suit property. It submitted that if the second appeal is dismissed, irreparable loss would be caused to the Applicant herein on account of the construction of the residential building on the suit property. 4. On the other hand, the learned Counsel for the Respondent herein has submitted that the Applicant was aware about the construction since 2003. He has invited my attention to the notice which was given by the Applicant herein to the Respondent. It is submitted that if the Applicant succeeds and the second appeal of the Respondent is dismissed, the Respondent shall undertake to remove the construction on the suit property. 5. In my view, there is some substance in the submissions made by the learned Counsel for the Applicant. The lower Appellate Court has decreed the suit and in the event the 3 (CAST12758.11) second appeal is dismissed, Plaintiff would be declared as owner of the suit property. During pendency of the appeal, therefore, in order to protect the right of the Plaintiff i.e. the Applicant herein, it would be appropriate if Respondent is restrained from carrying out any construction or creating any third party right in the suit property. Second appeal is of the year 2003 and that also can be fixed for final hearing within two weeks from today. 6. Civil Application is, therefore, allowed in terms of prayer clause (a) and disposed of. 7. Place the second appeal on final hearing board on 08/07/2011. (V.M. KANADE, J.) 4 (CAST12758.11)