1 WP-5704-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 5704 OF 2010 Shri Vinod S/o. Raishi Malde .. Petitioner/ Orig. Plaintiff Vs. Smt. Preeti w/o. Upwan Sapru Ahluwalia Respondent/ (orig.defendant) Mr. Manoj J. Bhatt,Advocate, for the petitioner. Mr.R.D.Soni, i/b. M/s. Ram & Co.,Advocates for the respondent. CORAM: J.H.BHATIA,J. DATE : 5th October, 2010. P.C. 1. Heard the learned Counsel for the parties. 2. The plaintiff filed Regular Civil Suit No.565/2009 in the Court of Civil Judge, Junior Division, Thane, claiming perpetual injunction restraining the respondent/defendant from causing any interference or obstruction in possession of the plaintiff or from making any encroachment on his land. He also filed an application Exhibit 5 for temporary injunction. The trial Court granted temporary injunction. That order was set aside by the District Court in Misc. Civil Appeal No.140 of 2009 after measurement of the land by the Taluka Inspector of Land Records (TILR). 2 WP-5704-10.sxw 3. The defendant/respondent does not claim any right on the land of the plaintiff. Admittedly, the land of the defendant is adjoining the land of the plaintiff. According to the defendant, she has obtained permission for construction on her own land and she has no intention to make any encroachment on the property of the plaintiff. It appears that when the suit was filed by the plaintiff and when the trial Court had granted temporary injunction, no report of measurement of the property was placed on record. When the appeal was pending before the District Court, with consent of both the parties, the Taluka Inspector of Land Records was appointed as Commissioner. He measured the land after giving notice and also fixed the boundaries of the land held by the parties. In view of that, the appellate Court found that there is no material to show any encroachment by the defendant on the plaintiff's property. 4. The learned Counsel for the plaintiff contends that the procedure was not followed by the TILR while taking measurement and fixing the boundaries and therefore he is going to challenge the said report before the trial Court. He cannot be stopped from challenging the report, but fact remains that there was no material on record to show that the defendant had made any encroachment or had any intention to make any encroachment on the property of the plaintiff. The 3 WP-5704-10.sxw learned Counsel for the defendant states that she has already obtained necessary permission for construction, but in view of suit filed by the plaintiff, she could not proceed with the construction. The learned Counsel also makes a statement that she will be making construction on her own land and in case any violation of the construction is found to be on the land of the plaintiff, she undertakes to demolish the same and will not claim any equity. Statement accepted. 5. In view of the above facts and circumstances, the Writ Petition stands dismissed. (J.H.BHATIA,J.)