SM 1 4.ao.611.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 611 OF 2011 WITH CIVIL APPLICATION NO. 841 OF 2011 IN APPEAL FROM ORDER NO. 611 OF 2011 Late Shankar Shinwar Patil (since deceased through L.Rs.) ....Appellants. Versus Late Shinwar Bhika Patil (since deceased through L.Rs.) ....Respondents. ____________ Mr. Sandesh D. Patil for the Appellants. Mr. J. G. Deshmukh with G. T. Kanchanpuram i/b A. J. Kandarkar for he Respondent Nos. 1 to 7. CORAM: R. M. BORDE, J. DATED : OCTOBER 13, 2011. P.C.: Heard. Admit. 2. With the consent of parties Appeal from Order is taken up for hearing and final disposal at the admission stage. 3. The properties involved in the suit, which have been acquired by the CIDCO authority belong to one Shinvar Bhika Patil. He had two sons by name Kondya and Shankar. Shri. Shinvar was the tenant in respect of the property. After demise of Shinvar, property devolved upon both the sons. Sofar as Survey No. 134 is concerned, which has been acquired by the CIDCO authority, the certificate issued by the tenancy authority stands in SM 2 4.ao.611.11 the names of Kondya and Shankar. The plaintiffs claim through the deceased Kondya whereas the defendants claim through deceased Shankar. It is to be noted that in respect of the Survey No. 134 and Survey No. 135 the certificate of ownership is issued in the name of Shankar alone. The records of rights appears in the name of deceased Kondya alongwith deceased Shankar and said entries continue until the property was acquired by the CIDCO authority. Thus, prima facie, there appears to be entitlement of the heirs of the deceased Kondya in respect of the property. The Trial Court has restrained the CIDCO authorities from making allotment of 12.5% land in favour of the defendant nos. 1 to 8 in lieu of acquisition of the suit property until disposal of the main suit. Considering the facts and circumstances of this case, entitlement of the defendants in respect of one half of the property atleast cannot be disputed and is not disputed even by the plaintiffs. The order passed by the Trial Court, therefore, needs to be modified and the CIDCO authorities need to be directed to make allotment of 50% of the plotable area in favour of the defendant nos. 1 to 8 in lieu of the acquisition of the suit property. The question of rest of 50% of the land is concerned, the same shall be subject to determination of the suit. Thus, the restraint order passed by the Court against the defendant nos. 9 and 10 needs to be modified and the defendant nos. 9 and 10 shall be restrained temporarily for making allotment of 12.5% land in favour of the defendant nos. 1 to 8 in lieu of acquisition of suit property until disposal of the suit. The defendant nos. 9 an d10 shall make allotment of plotable area to the extent of 50% out of 12.5% land in favour of the defendant nos. 1 to 8 and allotment of SM 3 4.ao.611.11 the balance 50% of plotable area out of 12.5% land shall be subject to final decision of the suit. 4. With this modification, the Appeal from Order stands allowed to the extent specified above. In view of disposal of the Appeal from Order, Civil Application does not survive and stands disposed of. (R. M. BORDE, J.)