1 caf543-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CIVIL APPLICATION NO. 543 OF 2011 IN FIRST APPEAL ST. NO. 3893 OF 2011 A. R. A. Shaikh .. Applicant V/s. M/s. Killedar Construction Company .. Respondent ..... Mr. Arshad Haindaday for the applicant. Mr. V. R. Tripathi for the respondent. ..... CORAM : A.S.OKA, J. DATE : AUGUST 17, 2011. P.C.: Heard the learned counsel appearing for the parties. The operative part of the impugned decree reads thus: “1. The suit is decreed with costs. 2. The defendant is restrained permanently from encroaching upon the suit terrace and from preventing the plaintiff from putting up grills of a reasonable height on the wall dividing the suit terrace from the one in possession of the defendant. 3. Decree be drawn up accordingly.” 2. The submission of the learned counsel appearing for the applicant is that the entire terrace abutting the flat of the applicant was sold to him and he was put in possession. The case of the respondent is that only a part of the terrace admeasuring 335 sq. feet was sold to the applicant who is the defendant. 2 caf543-11 3. The learned counsel appearing for the applicant relied upon certain admissions in the evidence as well as in the agreement. During the pendency of the suit, both the parties were directed to maintain status-quo in respect of the terrace and there was a direction that no construction shall be carried out on the said terrace. 4. Now there is a finding recorded by the trial Court that the entire area of the terrace was not sold by the respondent to the applicant and the entitlement of the applicant is confined to the area of the terrace admeasuring 335 sq.feet. The impugned judgment and order shows that there is already a dividing wall which divides the terrace into two portions. 5. Considering the finding recorded, no case is made out for grant of stay. 6. It is, however, made clear that the respondent shall not prevent the exclusive user by the applicant in respect of the area of terrace admeasuring 335 square feet. By fixing a grill, the respondent shall ensure that exclusive possession of the applicant over area of 335 sq. feet of the terrace is maintained. 7. Subject to what is observed above, the application is rejected. 3 caf543-11 8. The learned counsel appearing for the applicant states that there is no permission granted by the Municipal Corporation for erecting the grill. This issue is kept open and it is for the Municipal Corporation to decide whether permission is required for fixing the grill. (A.S.OKA, J.)