1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CIVIL APPLICATION (CAS) NO.385 OF 2010 IN S.A.NO.257 OF 2006. Chandulal Dayalji Vora and others. .vs. Shyamkumar Sundarlal Lohiya and others. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.A.M.Ghare,Adv. for the appellants. Mr.A.S.Chandurkar Adv. for resp.no.1. C ORAM : C.L.Pangarkar, J. DATED : 29th April, 2010. 1. Heard the learned counsel for the appellants and the respondents. 2. This application has been filed seeking a direction to the respondents to demolish a wall said to be constructed on a public way. 3. The plaintiffs/appellants had instituted a suit for a declaration and injunction alleging that the suit property is, in fact, not a plot but is a public way shown in the lay-out and therefore, the defendants do not have a right to make a construction thereon. 2 4. The said suit was contested by the respondent/defendant on the ground that the said piece of land has been purchased by defendant no.1 from defendant no.2 and he has been in possession of the said property. It was also contended that the said land has been declared to be a plot and not a road in the lay-out, as alleged. 5. The learned judge of the trial court, upon consideration of the evidence, found that the disputed portion is not a way as such but is a plot. He, therefore, dismissed the suit. An appeal was preferred before the District Judge and same was dismissed. This second appeal has been preferred against those judgments and decree. 6. This appeal came to be filed in the year 2006 and came up before the court for admission on 8/3/2010. The appeal has been admitted by this court. The day on which the appeal was admitted, the learned counsel for the respondents sought a time to file reply to the application for grant of a status quo. The matter was adjourned to 22/3/2010. On that day no reply was filed. Ultimately, the court once again granted further time to file the reply but ordered the parties to maintain the status quo. 7. It appears that the reply was filed in the instant matter to the application No.2484 of 2006, 3 on 26/3/2010. On 5/4/2010, it was brought to the notice of the court that the defendants are making certain construction on the suit site. As a result of this, on the oral submission, an order directing to maintain status quo was passed by this court. 8. The learned counsel for the applicants/appellants on that day submitted that he wanted to file an application in the matter for injunction. Accordingly, this application No.385 of 2010 was filed seeking an injunction restraining the respondents from making any construction and also seeking mandatory direction to demolish the construction that is already made. 9. The main contention of the appellants is that it is only after the respondents came to know that the appeal has been admitted by this court on the substantial questions of law, that the defendants/ respondents made a haste and in order to gain time they sought time from the court to file reply to application No.2484 of 2006. It appears that the court had granted time to file the reply. The learned counsel for the appellants brings to my notice that the appeal was admitted by this court on 8/3/2010 and time was granted to file reply up to 22/3/2010 but the reply was not file until that date. In the meanwhile, the respondents had moved an 4 application before the Police Inspector seeking a police aid to carry out construction on that portion in the protection of the police force. An amount was also deposited and the construction was sought to be made. On 26/3/2010, it appears that the appellants brought to the notice of the police Inspector that the matter was subjudiced and he should not have granted police aid etc. and an F.I.R. was registered against the respondents. The learned counsel for the appellants submits that this action on the part of the respondents is mala fide. He submits that after having come to know that the appeal has been admitted they were in a hurry to make construction and they have taken disadvantage of the fact that there was no interim order against them. Taking into consideration the above course of events, I am fully satisfied that the construction that is shown to be made in the photographs filed along with the application, is made by the respondents only after the appeal was admitted. There is least doubt about the same. The learned counsel for the appellants submits that it should be demolished and status quo ante should be restored. In the circumstances, I am of the opinion that it will not be appropriate to direct to demolish the construction at this stage because the Trial Court as well as the Appellate Court had rejected 5 the temporary injunction and had also dismissed the suit as well as the appeal on merits. There was no order whatsoever against the respondents and if they have, therefore, made any construction that could not be said to be without any rights although they were supposed to take into consideration the fact that the matter was subjudice before the court. Be that as it may, it would not be appropriate to demolish any construction already made but in order to see that the defendants/respondents should not make any further construction on the said plot and then raise a plea of acquiescence and equity, it would be appropriate to direct the respondents/ defendants not to make any kind of construction on the disputed portion of the land. The one already made, that would always be subject to the decision of the appeal since that has been made by the respondents/defendants during the pendency of this appeal. That would certainly be liable to be demolished if court ultimately finds that there is substance in the appeal filed by the present appellants. In the circumstances, the application stands disposed of with the above observations. List the matter for final hearing since both parties are ready for hearing. 6 This order would also govern on the application No.2484 of 2006. Shri Jayant Kolarkar Advocate is appointed as a Commissioner, who shall visit the disputed property/suit property and submit a report of the existing situation on suit plot. He should take photographs of suit site and file them along with his report. The report should be submitted before the court by reopening of the court after vacation. The Commissioner's fees Rs.1500/- to be borne by both the parties equally. List the matter on 10/6/2010. JUDGE. chute