{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.5 OF 2010 Rastriya Shikshan Mandal Ahmednagar Station Road, Ahmednagar, Through its Trustees APPELLANTS VERSUS Rajkumar s/o Bansilal Bhandari & others RESPONDENTS ....... Mr. N.V.Gaware, Advocate for appellants Mr. J.R.Shah, Advocate for respondents No.1 and 2 Respondents No.3 to 11 are deleted vide order dt.15.01.2010 ....... [CORAM : A.V.POTDAR, J.] DATE: 29th March 2010 PER COURT: 1. By this Appeal From Order, the appellants, original plaintiffs in Special Civil Suit No.259/2009 pending on the file of Civil Judge Senior Division, Ahmednagar, have assailed the order dated 19.11.2009 passed below Exhibit-5, thereby rejecting the application for temporary injunction. By this application (Exhibit-5), the appellants, original plaintiffs had sought two reliefs. Firstly, it was prayed that the compound wall constructed by the respondents be demolished, which was in the form of {2} mandatory temporary injunction. However, learned counsel for the appellants, does not press the said relief before this Court and hence this court need not advert to the same. Secondly, it was prayed that the respondents be restrained from erecting any construction on the encroached area admeasuring 113.75 square meters, which was noticed during the measurement carried out on 23.05.2008, before institution of the suit and the map filed along with the suit is part and parcel of the plaint and hence to be treated under Order 7 Rule 3 of the Civil Procedure Code. 2. Heard learned counsel for the appellants and learned counsel for respondents No.1 and 2. Considering the point involved in this appeal from order, the same to be decided at the stage of admission itself. 3. It appears from the pleadings that the property, Plot No.47 is owned by the appellants and as the appellants were suspecting the area, they filed an application for measurement of the said property. At the time of measurement, it was noticed that part of the same, shown in blue colour in the map, is owned by them, however the same is in possession of holder of final plot No. 48. Hence, suit for possession of the said property is filed. As the 113.75 square meter area is open area, an interim application, for not to construct or erect anything on the same, came to be moved. 4. It appears that on notice / summons, respondents {3} appeared and contested the suit as well as interim application. Vide order dated 19.11.2009, the learned lower court rejected the application for the reasons recorded in para 12 of the impugned order that though prima facie, the appellants / plaintiffs, established that the holder of plot No.48 has encroached an area of 113.75 square meter in the plot owned by the appellants / plaintiffs, yet that is not sufficient, as the measurement map will not be the only criteria to grant equitable relief. 5. During the course of submissions before this Court, it is brought to my notice by the learned counsel for the respondents that the respondents are not in agreement with the measurement carried out on the application of the appellants / plaintiffs, however, they have also applied for re-measurement of their own property. Admittedly, properties of the appellants and respondents are abutting / adjacent to each other. As this is a boundary dispute and fresh application is moved by respondents No.1 and 2 before the competent authority, it is necessary to modify the impugned order passed by the trial court. In the result, the Appeal From Order is allowed as per following directions. 6. The impugned order, not to restrain the respondents from erecting any construction on the area shown in blue colour in the measurement map dated 28.05.2008, is hereby modified by substituting the same that the parties to maintain status quo as on today till the application for re-measurement, moved by the {4} respondent is decided and the property is remeasured by the competent authority. It is hereby made clear that after the re- measurement, if any difference is found in the encroached area, then the parties are at liberty to move for modification of this order, however, before the lower court itself. Appeal from Order stands disposed of accordingly. It is, however, made clear that these are the prima facie observations and the trial court need not be influenced with the same. [A.V.POTDAR, J.] drp/A10/ao5-10 {5} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.551 OF 2010 IN APPEAL FROM ORDER NO.5 OF 2010 Rastriya Shikshan Mandal Ahmednagar Station Road, Ahmednagar, Through its Trustees APPELLANTS VERSUS Rajkumar s/o Bansilal Bhandari & others RESPONDENTS ....... Mr. N.V.Gaware, Advocate for appellants Mr. J.R.Shah, Advocate for respondents No.1 and 2 Respondents No.3 to 11 are deleted vide order dt.15.01.2010 ....... [CORAM : A.V.POTDAR, J.] DATE: 29th March 2010 PER COURT: 1. As the Appeal From Order is disposed of, this civil application does not survive and hence stands disposed of accordingly. [A.V.POTDAR, J.] drp/A10/ao5-10