( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3956 OF 2010 Pandharinath s/o Shripat Shete and others. PETITIONERS VERSUS Vitthal s/o Sakharam Shete and others. RESPONDENTS .... Mr. S.K. Shinde, advocate for the petitioners. Mr. S.T. Shelke, advocate for the respondent No.1. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 6th August, 2010] PER COURT : 1. Heard learned counsel. 2. The petitioners are original plaintiffs who have filed suit (R.C.S. No. 1149/2009) seeking fixation of boundaries after measurement of the land Survey No. 130/02 which partly came to their share and partly, is allotted to the shares of the respondents. They alleged that the respondent No. 1 had started construction of a house property without any legal authority and obtaining permission of the Village Panchayat or the Municipal Council and as such, the ( 2 ) temporary injunction was required to be granted so as to restrain the defendant No.1 from continuing the construction. The trial Court came to the conclusion that without ascertaining as to whether the construction was being done in the encroached area or was using the boundary limits of the share of the defendant No. 1, temporary injunction cannot be granted. Hence, the application (Exh-5) was dismissed. The petitioners preferred an appeal bearing M.C.A. No. 5/2010, which also has been dismissed by the learned District Judge, Sangamner. Needless to say, both the Courts have rendered concurrent findings of facts. At the same time, one cannot be oblivious of the concurrent finding recorded by both the Courts that the construction is being carried out without any permission of the competent authority. Mr. Shelke submits that the construction is now completed during the pendency of the suit and the application. 3. The petitioners are at liberty to move the competent authorities for removal of unauthorized construction if they chose to do so. In the meanwhile, the trial Court shall obtain undertaking from the respondent No. 1 to remove the unauthorized construction if the suit is decreed, within period of fifteen (15) days after passing of such decree, ( 3 ) subject to any further order by the appellate Court. If such undertaking is not given, the petitioners will be at liberty to file separate application for removal of such construction which is carried out during the pendency of the interim injunction application in as much as such act to change the nature of property requires condemnation. With these observations, the petition is dismissed. [V.R. KINGAONKAR] JUDGE NPJ/wp3956-10