IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8076 OF 2008 S.Chandrakant Sudam Katkar ...Petitioner V/s. Kisan Waman Katkar ...Respondent ...... Mr.D.Mishra for Petitioner. Mr.Jaydeep S.Deo for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. FEBRUARY 5, 2009. FEBRUARY 5, 2009. FEBRUARY 5, 2009. P.C. 1. Heard Counsel for the parties. 2. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order dated 21st November 2008 of the District Judge 12, Pune in Misc.Civil Appeal No.329 of 2008. By the impugned Judgment, the Appellate Court reversed the opinion recorded by the Trial Court which had granted interim injunction in favour of the Petitioner/Plaintiff. The Trial : 2 : Court granted wider relief in favour of the Plaintiff which reads thus : "ORDER 1) This application stands allowed. 2) Defendant or anybody on his behalf are hereby temporarily restrained from entering the suit property, (land of the plaintiff). They are also restrained from causing further construction on suit property, in any manner, till disposal of the suit. 3) Costs in the main cause." 3. Indeed, the Appellate Court may be right in observing that if the Plaintiff has purchased one-half undivided share in the suit property, he cannot claim to be in physical possession of the suit property unless definite share of the suit property is allotted after partition. There is no difficulty in accepting this observation of the Appellate Court but what has been glossed over by the Appellate Court is the grievance of the Plaintiff that although he has one-half undivided share in the suit property, the Respondent/Defendant was developing the property by : 3 : carrying on construction. This grievance of the Plaintiff was legitimate and ought to be addressed immediately. Once the property is allowed to be developed by the Respondent, even if subsequently the Petitioner were to succeed in the Suit, that would result in fate accompli situation for the Petitioner/Plaintiff. In such a situation, no party can claim that he is in possession of particular portion of undivided share in the suit property and proceed to develop the same unilaterally. This aspect of the matter has been completely glossed over by the Appellate Court. 4. In the circumstances, the Judgment under Appeal is set-aside and the parties are relegated before the Appellate Court for reconsideration of the restored Misc.Civil Appeal No.329 of 2008 on its own merits, keeping in mind the observations made in the earlier part of this order. 5. It would be open to the Appellate Court to mould the reliefs in such a way that ends of justice would be met during the pendency of the Suit. : 4 : 6. Petition is disposed of on the above terms. 7. Parties shall appear before the Appellate Court on 27th February 2009, on which date, the Appellate Court will proceed with the hearing of the restored Appeal or on such other date as may be convenient, while ensuring that the same is finally disposed of not later than end of April 2009. 8. Till the restored Appeal is finally disposed of, both parties shall maintain status-quo as of today with regard to the suit property. The Respondent shall not create any third party interest in any part of the constructed building standing on the suit property. Ordered accordingly. A.M.KHANWILKAR, J.