1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 870 OF 2008 IN NOTICE OF MOTION NO. 145 OF 2008 IN S.C.SUIT NO.170 OF 2008 W I T H CIVIL APPLICATION NO. 1043 OF 2008 IN APPEAL FROM ORDER NO.870 OF 2008 Shivaji Shankar Sudrik and 4 Ors. .......Appellants Verus Mr.Laxman Dhondiba Gudulkar and 4 Ors. ........Respondents Shri.P.G.Karande, adv.for appellants. Mr.Shreepad Murthy i/by.Mr.Vikrant K.Naikar,adv.for respondents. Coram: Smt.R.P.SondurBaldota, J. Dated : 27 th August, 2008. P.C. : 1. The appellants are original defendants no.1 to 5 to Suit No.170 of 2008 filed by the respondents. Appellants no.1 and 3 to 5 were occupants of Bohri chawl premises. The property of Bohri chawl came to be acquired by respondent no.4 who developed the same to construct two buildings, the first building known 2 as Mangal Murti Building was constructed to rehabilitate the tenants of Bohri chawl property. The second building known as Yashashree Building is constructed for selling the flats therein to the outsiders. The dispute in the present suit is in respect of construction of a pendol for celebration of Ganpati Festival. There is no dispute that the construction of the two buildings was completed in the year 2005 and the parties have been occupying their respective premises. Relying on the agreement dated 17th May, 2005 which has been executed subsequent to the construction of two buildings, it is argued before the city civil court as well as before this court that the appellants who are the occupants of Mangal Murti Building are entitled to have their pendol for celebration of Ganpati Festival in the space between the two buildings. The open space available for Mangal Murti building towards Yashashree building is of 15 ft. The open space available to the Yashashree Building towards Mangal Murti Building is of 20 ft. Thus, there is a total open space of 35 ft. between the two buildings. The respective open spaces of the buildings are earmarked by polls fixed in the ground connected by chains. The appellants contends that in view of this agreement, they have been given a right by respondent no.4-owner to use the space of entire 35 ft. for setting up the pendol. The agreement refers to removal of the chains during the relevant period. The agreement however, neither specifies the location of the pendol nor the size of the pendol. Besides, the occupants of Yashashree Building are not a party to the agreement. Therefore, the same cannot bind them. Even though, respondentno.4 is yet to convey the property to the respective societies, it cannot be forgotten that 3 respondent no.4 has entered into agreement with each of the flat purchaser in the Yashashree Building as also in Mangal Murti Building. That agreement does not refer to any such use of the open space. Therefore, on prima-facie view respondent no.4 could not have entered into an agreement behind the back of the occupants of the Yashashree building. 2. The learned Trial Judge has taken note of the fact that there is a space admeasuring about 3,000 sq.ft behind Mangal Murti Building for celebration of Ganpati Festival by the appellants. Mr.Karande, learned counsel for the appellants submits that, this space is not convenient for two reasons, firstly, there is a well situated on a portion of the land and secondly this space is closer to railway tracks. He apprehends that the vibrations caused to the ground by continuous running of the trains, may cause some harm to the Idol. I find no substance in the apprehension because in the city of Bombay, one finds several such celebrations located close to the railway tracks. Besides, it is possible for the appellants to take appropriate precaution at the time of setting up the pendol. As regards the existence of the well, it is not disputed that such an well exists in that open space. However, as rightly observed by the learned Judge of the City civil court it is possible to close the well temporarily and have the celebration. Lastly, it cannot be forgotten that what is being done, is only a celebration of the festival and it is possible to limit the celebration within the space available to the parties. In the circumstances, the Appeal from order is dismissed in limine. The observations 4 made in this order are prima-facie observations and the trial court, as and when, it decides the suit will decide the same on its own merits, uninfluenced by the prima- facie observations. 3. As the Appeal from order itself is dismissed, Civil Application does not survive and the same is accordingly disposed off. [Smt.R.P.SondurBaldota, J]