(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 1398 OF 2010. 1.Suresh Kisanaji Kadbe and another -: versus :- Sau. Pravina Nilkanthrao Lohkare. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : APRIL 07, 2010. Heard finally by consent of Shri S.M. Nafade, learned counsel for petitioners and Shri M.B. Badiye, learned counsel for respondent. The Trial Court has rejected temporary injunction to present respondent / plaintiff and the same was granted in Regular Civil Appeal. The petitioners/defendants contend that there is no title document in favour of respondent / plaintiff and burden was upon respondent / plaintiff to show extent of land belonging to him and the alleged encroachment. Petitioners rely upon the sanction given to him by the Gram Panchayat to construct on his land. Shri Naphade, learned counsel for petitioners has argued that the construction of petitioners has already reached slab level and only external plastering and slab is to be put. He further states that petitioners/defendants is ready to remove the entire offending structure without any (2) objection, if the suit is decreed by the trial Court. Shri Badiye, learned counsel for respondent / plaintiff on the other hand states that the sanction to construct was obtained without consulting the present respondent and hence after the respondent noticed the offending structure, objection was raised and Gram Panchayat had called upon the petitioners to produce title documents and the petitioners / defendants did not produce the same and proceeded further with the construction. He further argues that if the structure is allowed to be completed irreparable loss will be caused to the respondent. He relies upon a registered partition deed dated 10.08.1981 to show the title of respondent to the suit property. I have perused the relevant documents. It is apparent that the burden is upon the respondent / plaintiff to show that petitioners have committed any encroachment. The encroachment alleged is to the extent of 1 feet in width and 23 feet in length. The photographs shown to this Court reveals that brick work and wood work is over and only external plastering and slab is to be put. In such situation, stopping the construction at this stage no advantage would accrue to respondent / plaintiff. If the construction is allowed to be completed, no additional prejudice is caused to the respondent/plaintiff. The petitioners have already stated that if the suit is decreed, they will immediately remove the offending structure. The petitioners shall file an undertaking before the Trial court that in case the suit is decreed, they shall remove the offending structure within a period of three weeks, after the adjudication by the trial Court. If such (3) undertaking is filed, the petitioners are at liberty to complete the external plastering work and the other internal work at his own risk and cost as to consequences thereof. Subject to their undertaking, the impugned order passed by the Adhoc District Judge-3, Nagpur in Misc. Civil Appeal No. 26/2003 is quashed and set aside. The proceedings in suit are expedited and the trial Court shall decide the same as early as possible and in any case by 31.12.2010. In view of the above discussion, Writ Petition is allowed. Rule accordingly, with no order as to cost. JUDGE Rgd.