1 W.P. 9719.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9719 OF 2011 1. Devidas S/o Marutirao Mule Age : 72 Yrs., Occ. Pensioner. R/o : Tagor Nagar, Latur. 1. Jayant S/o Devidas Mule Age : 42 Yrs., Occ. Agriculture, R/o : Tagor Nagar, Latur. ....PETITIONERS V E R S U S Dhananjay S/o Devidas Mule Age : 41 Yrs., Occ. Service, R/o : Tagor Nagar, Latur. ..... RESPONDENT Mr. P.G.Mahalankar, Advocate for the Petitioners. Mr. Hiraji Gaikwad, Advocate for Resp. No. 1 CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 21/12/2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2 W.P. 9719.2011 - [ J ] 2. The petitioners are the original defendants. The respondent has filed Suit for partition and separate possession. Along with the said Suit, the respondent has also filed an application for injunction restraining the petitioner from interfering in the peaceful possession and changing the nature of the suit property. The trial Court allowed the said application. Aggrieved thereby, the petitioners filed Appeal. The Appeal was also dismissed. Aggrieved thereby, the present Writ Petition is filed. 3. During the course of arguments, it transpired that the petitioners have already executed a registered mortgage deed in favour of State Bank of India, Chandranagar branch, Latur and encumbrance is created over the said property. 4. It is submitted by the learned counsel for the petitioners that the petitioners have already spent huge amount for the construction and if, at this stage, the said construction is stalled, the petitioners would suffer irreparable loss. 5. As is evident from the registered mortgage deed, encumbrance is already created over the property and financial aid is obtained from the bank, it would not be in the interest of any party to stall 3 W.P. 9719.2011 - [ J ] the construction at this stage. The petitioners have also filed undertaking to this Court, which is marked ‘ X ’ for identification. The petitioners have undertaken that they would not claim any equity in respect of the development carried out on the suit property and have further undertaken to hand over the peaceful vacant possession of respondent’s share. 6. In view of the above, the impugned orders are quashed and set aside. The undertaking filed by the petitioners is accepted. It is made clear that the petitioners henceforth shall not alienate or create third party interest in the suit property and shall demolish the construction on their own if directed by the Court and shall hand over the vacant peaceful possession if the trial Court on the determination of the disputes directs so. 7. Rule is accordingly made absolute in above terms. No costs. [ S.V. GANGAPURWALA,J. ] KNP/W.P. 9719.2011 - [ J ]