1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1177 OF 2008 WITH CIVIL APPLICATION NO.1435 of 2008 Shri Vilas Sarjerao Borade & Anr. ....Appellants Versus Muktabai Balu Mathe & Anr. ....Respondents. Mr. S.A.Sawant, Advocate for the Appellants. Mr.Hardas i/b. Mr.Sumit Khaire for Respondent Nos.1 to 3. Mr.Vijay Patil for Respondent No.4. CORAM : R. V. MORE, J. DATED : 27TH APRIL, 2009. P.C. Heard, Mr. Sawant, learned Counsel for the Appellant, Mr. Hardas, learned Counsel for Respondent Nos. 1 to 3 and Mr.Vijay Patil for Respondent No.4. 2. The Appellants are the Original Plaintiffs and the Respondents are Original Defendants. Predecessor in title of Respondent Nos.1 to 3 by name Balu Mathe entered into development agreement in respect of the suit property being land admeasuring 32 R out of Sy.No.200 Hissa No.1 admeasuring 96 R with the Appellant No.2/ Plaintiff No.2. There is no dispute that the land was subsequently acquired by the Government for Respondent No.4/Authority. After acquisition, the Respondent Nos.1 to 3 2 were entitled for allotment of plot and land under 12.5% scheme. 3. The Appellants/Original Plaintiffs filed S.C.Suit No.1372 of 2008 for declaration that they are entitled for 12.5 Partawa land against acquisition of the suit property. The Appellants also prayed for direction to the Respondents to execute and register deed of assignment of 12.5% Partawa land to be allotted to Respondent No.1 to 3. The Trial Court by the order which is impugned in the present Appeal from Order rejected the Appellants’ application. Mr. Sawant, learned Counsel for the Appellants, submitted that in view of clause 10 of the development agreement entered into between the Appellant No. 2 and predecessor in title of Respondent Nos.1 to 3, he is entitled to 12.5% Partawa land which is to be allotted to Respondent Nos. 1 to 3 in pursuance of 12.5% scheme. I have gone through clause 10 of the agreement. In my view, the said clause cannot be interpreted to mean that the Appellants are entitled for Partawa land which is to be allotted to Respondent Nos.1 to 3, in pursuance of the policy of Respondent No.(4). The development agreement was basically in respect of survey no. 200 admeasuring 32 R. This land was already under acquisition at the time of execution of the said development agreement. The Appellants/Plaintiffs entered into transaction with the knowledge that the land is likely to be acquired. Once the subject matter of the development agreement is acquired by Authority- Respondent No.4 then the development agreement cannot be specifically enforced and the Appellants at the most are entitled to refund of earnest amount. The Trial Court has taken similar view, I do not find any error, so as to enable me to interfere in the impugned order. The Appeal from Order is accordingly, dismissed. It is made clear that the observations made in this order are prima-facie observations and the same are made for the purpose of 3 disposing this Appeal from Order and the Appellants’ suit shall be decided independently on its own merit and without being influenced by the observations made by this Court. 4. Mr.Sawant, learned Counsel for the Appellants, at this stage requests for continuation of the ad-interim relief granted on 18th November, 2008 for the period of six weeks from today. The prayer is opposed by both the learned Counsel appearing for the Respondents. In the interest of justice, in order to enable the learned Counsel for the Appellants to approach the Apex Court, the ad-interim relief is continued for the period of three weeks from today. 5. In view of the dismissal of the Appeal from Order, the Civil Application No.1435 of 2008 will not survive and therefore, the same is disposed of. (R. V. MORE, J.)