1 caf1257-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa CIVIL APPLICATION NO. 1257 OF 2011 IN FIRST APPEAL NO.432 OF 2008 Baburao Devendra Patil (Since deceased through his LR's) Shantabai Baburao Patil & Ors. .. Applicants V/s. Ramchandra Shankar Patil & Ors. .. Respondents ..... Mr. V. A. Gangal, senior counsel i/b. Mr. Ashok T. Gade for the applicants. Mr. S. K. Shinde & Mr. Makrand P. Panchakshari i/b. Mr. Sagar Kasar for respondent Nos. 1 and 2. ..... CORAM : A. S. OKA, J. DATE : MAY 4, 2011. P.C.:­ This is an application made by the respondents in pending First Appeal preferred by the first and second respondents herein for challenging the Judgment and decree dated 31st October, 2007, passed by the trial Court. The appellants are the original defendant Nos.1 and 2 in the suit filed by the first and second respondents. The suit was filed by the first and second respondents for partition, declaration and possession. The suit was contested by the appellants. The trial Court 2 caf1257-11 held that the suit property was undivided joint family property of the parties. However, the trial Court discarded the case made out by the first and second respondents regarding the oral partition and ultimately the trial Court proceeded to dismiss the suit. 2. The Appeal has been admitted for final hearing. 3. The case made out in this application is that the applicants' mother is 95 years old and, therefore, it is necessary to urgently construct toilet block and a bathroom adjacent to the existing house No. 695. Reliance is placed on permission granted by the village panchayat on 4th October, 2010. Alongwith an affidavit of the second applicant, a copy of the plan of the proposed construction approved by the village panchayat is also placed on record. 4. The learned counsel appearing for the applicants submitted that as per the sanctioned plan, the applicants have been permitted to construct a kitchen and a toilet block in the court yard of the existing house. He stated that the applicants will not claim any equity and will give an undertaking to demolish the construction in the event the first and second respondents succeed in the Appeal. 3 caf1257-11 5. The learned counsel appearing for the first and second respondents pointed out that from the averments made in paragraph No.7 and the prayers in the application that a permission is sought only for the purpose of a construction of a toilet block and a bathroom adjacent to the house. He submitted that only on humanitarian grounds the first and second respondents have no objection if the applicants construct a toilet block and a bathroom subject to terms and conditions. He submitted that permission cannot be granted to construct a kitchen. The learned counsel for the respondents pointed out that there is no prayer made for grant of permission to construct a kitchen. 6. I have given careful consideration to the submissions. It is true that the documents annexed to the application and the affidavit tendered show that there is a permission granted by the village panchayat to construct a toilet block, a bathroom and a kitchen. However, in the application, there is no prayer as regards the kitchen and, therefore, the present application will have to be considered confined to prayer clause (a). Once permission is granted to construct toilet block and bathroom, it is not necessary to grant prayer (b). Hence, I pass the following order : 4 caf1257-11 :: O R D E R :: i. The applicants are permitted to construct a toilet block admeasuring 1.5 meter x 2 meter and a bathroom admeasuring 2 meter x 2 meter as shown on the sanctioned plan. ii. It is made clear that the construction as aforesaid carried out by the applicants will be subject to final outcome of the Appeal and the applicants will not be entitled to claim any equity on the ground that they are permitted to carry out the construction. iii. Permission is granted to carry out construction subject to condition of the applicants filing an affidavit in this Court within a period of four weeks from today stating therein that the construction of a toilet block admeasuring 1.5 meter x 2 meter and a bathroom admeasuring 2 meter x 2 meter as per the sanctioned plan will be made without claiming any equity. The affidavit shall incorporate an undertaking that, in the event, the first and second respondents succeed in First Appeal, the applicants will remove the construction of 5 caf1257-11 toilet block and bathroom at their own cost and will restore the position of the property as it exists today. iv. It is made clear that construction shall be commenced only after filing aforesaid affidavit. v. As far as construction of a kitchen is concerned, it will be open for the applicants to make a separate application. vi. Civil Application is disposed of. JUDGE