1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1076 OF 2010 Smt. Shantabai Gangaram Bhoir & Anr. .. Petitioners Vs Rocky Duming Colaso. .. Respondent -- Shri K.S. Patil for the Petitioners. -- CORAM : A.S.OKA, J. DATE : 4TH MAY, 2010 P.C: . Heard learned counsel appearing for the Petitioners. The Petitioners are the original Plaintiffs. The Petitioners filed a suit for perpetual injunction restraining the Respondent from carrying out construction of a wall which is referred to in the suit. The apprehension of the Petitioners is set out in Paragraph 5 of the Plaint. An application for temporary injunction was made by the Petitioners which was allowed by the Trial Court. An appeal was preferred by the Respondent. By the impugned order, the order of the Trial Court has been set aside. In Paragraph 7 of the impugned order, the learned Judge of the Appellate Court observed that there is no demarcation of boundary marks on the spot so as to separate the property of the Defendant from the Plaintiffs. In 2 Paragraph 9 of the impugned judgment, the learned Judge has observed thus : - “9. .....I have already point out that purpose for this injunction application is regarding compound wall. It is submission that defendant has already completed work regarding erection of compound wall and so now there is no probability of any compound wall to be erected at the boundaries of plaintiffs land as claimed by him and as shown in the report of Court Commissioner. .....” 2. Though there is a finding that there is no demarcating boundary mark so as to separate the property of the Defendant from one of the Plaintiffs, the Appellate Court interfered with the order of temporary injunction by observing that the work of construction of the boundary wall has been already completed and that “there is no probability of any compound wall to be erected at the boundary of the Plaintiffs’’ land as claimed”. Thus, temporary injunction has been vacated mainly on the ground that there is no apprehension. The learned counsel appearing for the Petitioner disputes the correctness of the statement that the construction of the wall has been completed. However, there is a categorical finding recorded by accepting the submission of the Respondent that the construction of the boundary wall has been completed and therefore, there is no probability of the Respondent carrying out any further construction of the wall. 3. In view of the aforesaid finding, though no interference at this 3 stage is called for. It is obvious that if the Respondent recommences the construction of the wall, the Petitioners can take recourse to Rule 4 of Order XXXIX of the Code of Civil Procedure, 1908 and file an application for appropriate relief. 4. Subject to what is observed above, no case for interference is made out. The Writ Petition is rejected. (A.S.OKA, J)