Karnataka High Court
Sri. Hemanth vs Sri. N Jayarama Reddy on 13 December, 2017
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
Miscellaneous First Appeal No.8149 OF 2017 (CPC)
BETWEEN
Sri. Hemanth,
S/o. Late Subash Chandra Bose,
Aged about 38 years,
No.304, 'C' Block,
Nagarjuna Apartment,
Tulasi Theater Road,
Opp: RJS College,
Maratahalli.
Bengaluru-560037. ...Appellant
(By Sri. G.Krishnamurthy, Sr. Counsel for
Sri. Chandrakanth Patil K., Advocate)
AND
Sri. N.Jayarama Reddy,
S/o. late Nanjappa,
Aged about 72 years,
R/at No.822, Tulasi Theatre Road,
3rd Cross Right, Marathalli,
Bengaluru-560037. ...Respondent
(By Sri. Jayakumar S. Patil, Sr. Counsel for
Sri. K.Varaprasad, Advocate)
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This MFA filed under Order 43 Rule 1(r) of the
CPC, against the order dated 12.09.2017 passed on
I.A.No.2 in O.S.No.3336/17 on the file of the 37th
Additional City Civil Judge, (CCH-38), Bengaluru,
allowing I.A.No.2 filed under Order 39 Rule 1 & 2 r/w
Section 151 of CPC, and temporary injunction will be in
force till pendency of the suit.
This MFA coming on for Admission, this day, the
Court delivered the following:
JUDGMENT
The defendant has preferred this appeal challenging the order dated 12.09.2017 passed on I.A.Nos.2 and 3 filed in O.S.No.3336/2017 on the file of Addl. City Civil Judge, CCH-38, Bengaluru City.
2. The respondent in this appeal is the plaintiff in the suit. This suit is for declaration of his title in respect of 'C' schedule property, perpetual injunction to restrain the defendant from putting up any construction in the 'C' schedule property, mandatory injunction for removing the construction already put by the defendant in the 'C' schedule property and permanent injunction 3 to restrain the defendant or anybody claiming under him from interfering with his peaceful possession and enjoyment of 'C' schedule property.
3. The plaintiff's case is that 11 ½ guntas of land including ½ gunta Kharab in Sy.No.97/2A7 of Munekollalu village, Varthur Hobli as described in 'A' schedule of the plaint belongs to him absolutely. Totally 1 Acre 23 guntas of land including 2 guntas of Kharab in Sy.No.97/2A of Munekollalu village earlier belonged to plaintiff's father T. Nanjappa. On 26.11.1980, T. Nanjappa sold 2 guntas of land in this survey number to defendant's father Subash Chandra Bose. This property is described in 'B' Schedule of the plaint. After death of T. Nanjappa, his sons including the plaintiff effected partition of the family properties on 27.08.2008. In this partition 11 ½ guntas of land as described in 'A' schedule fell to the share of the plaintiff. Varthur main road is situated towards South of the land in 4 Sy.No.97/2A. The plaintiff's father T. Nanjappa had set apart 5 guntas of land by the side of this road to see that all his sons would get a piece of land by the side of road and therefore when the partition took place on 27.08.2008, one gunta of land out of 5 guntas fell to the share of the plaintiff. The defendant's land is situated by the side of the Varthur main road. 11 ½ guntas of land which fell to the share of the plaintiff is situated towards Northern side of the defendant's land and this 5 guntas of land.
4. According to the plaintiff the defendant's father purchased only 2 guntas of land and its measurement is East to West 33 ft. and North to South 66 ft. In the 1st week of April 2017 defendant started putting up construction in the land that belongs to him. But on 16.04.2017 the defendant tried to encroach upon the land towards the Northern side abutting his land. The plaintiff attempted to resist the illegal acts of the 5 defendant. He also made a complaint to police on 27.04.2017. The police failed to take action and told him that he should approach Civil Court for redressal. The plaintiff has stated that defendant has no manner of right in 'C' schedule property. He cannot encroach upon this land while constructing a building in the land belonging to him i.e., 'B' schedule property. The construction undertaken by the defendant is also illegal as he has not obtained construction license from any authority.
5. Along with the plaint the plaintiff also filed an application as per I.A.No.2 seeking an order of temporary injunction to restrain the defendant from encroaching upon 'C' schedule property and raising any construction. The trial court in the first instance granted an exparte order of temporary injunction. The defendant appeared and filed his written statement and 6 an application under Order 39 Rule 4 of CPC as per I.A.No.3 for vacating order of injunction.
6. The defendant's case is that his father, after purchasing 'B' schedule property from plaintiff's father on 26.11.1980, also purchased a marginal piece of land attached to 'B' schedule property on the southern side for a consideration of Rs.8,000/-. In this regard plaintiff's father executed an agreement of sale in his favour on 18.06.1981 and a power of attorney on 5.8.1981. He could not obtain the sale deed at that time because of ban on registration of revenue lands according to the provisions of Prevention of Fragmentation and Consolidation of Holdings Act, 1966. However his father obtained Khata of 'B' schedule property. Thereafter the defendant succeeded to his father's property, obtained sanction plan from competent authority and also borrowed huge amount of money for constructing a building in 'C' schedule 7 property. Thus the defendant asserted that 'C' schedule property is in his possession and that the plaintiff has no manner of right to claim declaration of title. The construction undertaken by him is in the property belonging to him and that the plaintiff has filed a false and frivolous suit. He also further pleaded that the order of injunction operating against him would affect his interest to a great extent as he has invested huge amount for raising construction and therefore that order needed to be vacated.
7. The learned trial judge after hearing the plaintiff and the defendant confirmed the order of temporary injunction by allowing I.A.No.2 and dismissing I.A.No.3. If the impugned order is perused it is found that main reason for confirming the ad interim order of injunction by the trial judge appears to be that the defendant's claim that his father had purchased 'C' schedule property under an agreement of sale dated 18.06.1981 8 did not result in any interest being transferred to the name of defendant's father. This was not a transfer according to Section 54 of Transfer of Property Act. The defendant's case is not that since father of the plaintiff failed to execute a sale deed, a suit for specific performance of contract had been filed by his father. Defendant's case is that his father could not obtain sale deed because there was ban on registration of revenue lands. Referring to the power of attorney dated 05.08.1981, learned trial judge held that though it contained a clause that possession of the property was handed over to defendant's father, the power of attorney and the affidavit also did not create any interest in the name of defendant's father. Till today the title of 'C' schedule property is with the plaintiff. Then the trial court referred to the sale deed executed by plaintiff's father in favour of defendant's father and observed that defendant was laying claim on road margin portion. When the title was not transferred to defendant's father, 9 the possession that the defendant holds is just like an agent by virtue of the power of attorney and that he holds the possession on behalf of his principal i.e. the plaintiff. In the light of these circumstances the trial court came to conclusion that the issue with regard to defendant's title is to be decided after conducting full fledged trial and therefore the plaintiff has made out a prima facie case.
8. The trial court has also held that balance of convenience is in favour of the plaintiff because there is a dispute with regard to identity of plaint 'C' schedule property. If the construction is allowed, the plaintiff's interest will be very much affected and it cannot be compensated in terms of money. For this reason the plaintiff suffers irreparable loss and injury.
9. Questioning the correctness and legality of the impugned order, Sri. G.Krishnamurthy, the learned senior counsel for the defendant/appellant, argued that 10 the trial court has committed an error in exercising its discretion to grant an order of temporary injunction in favour of the plaintiff. The trial court failed to consider the materials placed before it by the defendant. It has just proceeded on the ground that the defendant's position is that of an agent of the plaintiff because of power of attorney that had been executed by the plaintiff's father in favour of defendant's father. It may be true that the defendant's father did not enforce the agreement executed in his favour by the plaintiff's father, but it was because of prohibition imposed on registration of fragmented agricultural land. Nonetheless possession of 'C' scheduled property had been handed over to defendant's father pursuant to the agreement. Continuously the possession of 'C' schedule property was with defendant's father and thereafter with the defendant and therefore his possession is protected under Section 53A of the Transfer of Property Act. He argued that the plaintiff should have sought relief of 11 possession also, this relief being not sought, the suit is not maintainable.
10. The learned counsel further argued that the boundaries given by the plaintiff for 'C' schedule property in the plant are incorrect. Purposefully he had made an attempt to show that the land actually sold to defendant's father under the agreement was situated on the other side of the 'B' schedule property, but the agreement clearly shows that 'C' schedule property or the land that the defendant's father purchased under the agreement is situated by the side of Varthur main road.
11. The next point of argument is that the defendant has already raised substantial construction. The photographs show the stage of construction. Actually there was a building in the 'C' schedule property and after demolishing it, the defendant started constructing the building in the entire property 12 belonging to him. This was within the knowledge of the plaintiff. Only when the defendant undertook new construction, the plaintiff started objection. The trial court has not applied its mind while holding that the balance of convenience lies in favour of the plaintiff and that it is the plaintiff who suffers irreparable loss and injury. He argued that when the construction has come up to a certain extent or level, temporary injunction should not be granted for stopping the construction activity. On this point he referred to the judgment of the Supreme Court in the case of ECE INDUSTRIES LIMITED (2) vs S.P. REAL ESTATE DEVELOPERS PRIVATE LIMITED AND ANOTHER [(2009) 12 SCC 776] and of the Orissa High Court in the case of SURENDRA MOHARANA vs RAJKISHORE MOHARANA AND OTHERS [2015(II)OLR378]. Therefore he argued that the trial court has erred in exercising discretion for granting an order of injunction in favour of the plaintiff and the same needs to be vacated by allowing this 13 appeal. He also submitted that the defendant is ready to give an undertaking by filing an affidavit that in case the plaintiff succeeds is the suit, he is ready to surrender possession of schedule 'C' property to plaintiff.
12. Meeting this argument of the defendant's/appellant's counsel, Sri Jayakumar S. Patil, the learned senior counsel for the respondent/plaintiff argued that the trial court has not committed any error for granting injunction in favour of the plaintiff. The trial court has rightly held that the prima facie case is made out by the plaintiff and that the balance of convenience lies in his favour. It is also rightly held that the plaintiff suffers irreparable loss and injury in case injunction is denied. The learned counsel argues that the defendant's father purchased only two guntas of land and as can be seen from the sale deed this land is situated by the side of the main road. When a portion 14 of the defendant's property was utilized for widening of the main road, he started encroaching upon the plaintiff's property on the hind side and this was the reason for the plaintiff to institute a suit. There is no dispute about the plaintiff's title. He has sought mandatory injunction for demolishing the structure that exists in 'C' schedule property. Still the construction is underway and if the defendant succeeds in constructing the building, the plaintiff finds it difficult to take the possession. Further this kind of a situation leads to another round of litigation. The defendant cannot claim protection under Section 53A of Transfer of Property Act as it is very clear that the defendant relies upon an agreement of sale of the year 1981. The defendant's father did not file a suit for specific performance and even the defendant also did not show any interest to enforce the agreement. This shows that the defendant was never ready to perform his part of the contract and for this reason the defendant cannot take shelter under 15 Section 53A of the Transfer of Property Act. In support of his argument, he relied upon the judgment of the Hon'ble Supreme Court in the case of A. LEWIS AND ANOTHER vs. M.T. RAMAMURTHY AND OTHERS [(2007) 14 SCC 87].
13. He further argued that when the defendant seriously questions the very identity of the 'C' schedule property, the proper course would be to maintain status quo as it exists on the date of suit and having regarding to this aspect of the matter the trial court rightly granted injunction. Placing reliance on the judgment of this court on this point in the case of NARASINGH vs. K. BASAVARJ [2010 (1) KCCR 346] the learned counsel argued for sustaining the order of injunction and dismissing the appeal.
14. Having heard both sides, the first point that requires to be mentioned here is that this is an appeal preferred against the order of trial court which has 16 granted temporary injunction. The scope of the appeal is limited to examining the correctness of the discretion exercised by the trial court. If it is found that the trial court has properly exercised discretion in the background of the facts and circumstances placed before it, even if it is possible for the appellate court to take another view, proprietary requires that such an order passed by the trial court should not be interfered with. Only when the order of the trial court is found to be capricious or discretion is exercised in utter disregard of the established principles, there is scope for interference in this appeal. I find it appropriate to refer to the observation of this court in the case of LAKSHMI NARASIMHAIAH AND OTHERS vs. YALAKKI GOWDA [ILR 1965 MYSORE 40] where it is held as below:
"An appeal lies from the order of a trial Judge granting or refusing to grant an interim injunction, but what the court of appeal has to consider is simply whether or not the Judge 17 who dealt with the matter has properly exercised the discretion which he undoubtedly possesses. The question for the decision of the Civil Judge, who heard the appeal, was whether the Munsiff did not properly exercise his judicial discretion. The appellate Judge is not to approach the case as if he were the trial Judge. A good percentage of suit in this State are for the relief of permanent injunction, and in every one of such suit, there is an application for interim injunction; trial Judge in the majority of the case, as a matter of course, grant order of temporary injunctions and cases of refusal are rare. Those orders granting or refusing the interim relief are taken up in appeals and the appellate courts go into the merits of the contentions in the suit as if they are trying the issue as to which of the parties is in possession. The question which they consider is not whether or not the trial Judge has properly exercised his judicial discretion".18
15. If the impugned order is perused it becomes very clear that the trial court has examined the entire case by considering only the defence that the defendant has taken. Having held that the dispute is with respect of 'C' schedule property, the trial court proceeds to further observe that the defendant is claiming 'C' schedule property on the basis of agreement dated 18.06.1981 and also a power of attorney executed by the plaintiff's father. It has held that the execution of agreement of sale and power of attorney are not valid transfers and the purchaser under these deeds do not derive any interest. There cannot be a doubt with regard to this proposition as these types of transactions are nothing but clandestine sale transactions which do not have legal sanctity and cannot be recognized. But what is to be mentioned here is that it is the plaintiff who has come to court alleging interference by the defendant over the 'C' schedule property and he asserts that this piece of land was allotted to him at the time of 19 partition between him and his other brothers. Therefore the first endeavour of the court to decide whether there exists a case for granting temporary injunction or not must be to make prima facie assessment of the case put forward by the plaintiff. Then the defence must be taken into consideration. The next stage is to make overall assessment of both the plaintiff's case and defendant's case to draw inferences. This exercise that the trial court has to do cannot be construed as holding mini trial. The assertions made in the affidavit along with the documents produced by the plaintiff and the defendant are essential to be examined. Unfortunately, the trial court has not resorted to this exercise. The impugned order shows no prima facie assessment of the plaintiff's case. Therefore I have to say now that the impugned order is capricious and arbitrary.
16. It is not the case of the plaintiff that his father did not execute an agreement of sale and a power of 20 attorney in the year 1981 in favour of the defendant's father. Even when the learned counsel for plaintiff/respondent argued, it was not highlighted that these deeds were not executed by the plaintiff's father. His argument was confined to the point that since a portion of property purchased by defendant's father on 26.11.1980 was utilised for widening the road, the defendant started encroaching upon the plaintiff's property. This being the actuality, the entire approach should be not on the basis of whether there was valid transfer of property or not, but how these transactions have the effect on possession of schedule 'C' property.
17. No doubt the plaintiff states about a partition that was said to have taken place on 27.8.2008. In this partition, 11½ guntas of land as described in schedule 'A' was allotted to him. Besides this land, he also claims allotment of 'C' schedule property. But his claiming of 'C' schedule property cannot be per se 21 believed in view of possession of this piece of land being transferred to defendant under agreement of sale and power of attorney. The plaintiff is also one of the executants of agreement of sale along with his father and brothers. The clear recital formed in the agreement dated 18.6.1981 is as follows:
¸Àzj À d«Ää£À°è ªÀÄ£É PÀlÖ®Ä ¥ÁægA À ¨sÀ ªÀiÁr ¤ªÀÄä C£ÀÄPÀÆ®PÉÌ ¸ÀjAiÀiÁV eÁUÀ ¸Á®zÉAzÀÄ CUÀvÀåªÁV SÁ°Ã eÁUÀ ¨ÉÃPÉAzÀÄ C¥ÉÃPÉë ¥ÀlÖzÀÝjAzÀ F PɼV À £À µÉqÀÆå°£À jÃvÁå «ªÀj¹gÀĪÀ d«ÄãÀ£ÀÄß ¤ªÀÄUÉ UËgÀߪÉÄAmï 8000-00 JAlÄ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ½UÉ ±ÀÄzÀÞ PÀA æ iÀÄPÉÌ PÀA æ iÀÄ ªÀiÁr PÀA æ iÀÄzÀ ªÉƧ®UÀÄ ¥ÀÆvÁð F PɼV À £À ¸ÁQëU¼ À À ¸ÀªÀÄPÀëªÀÄ £ÀUz À ÁV ¥Àqz É ÀÄPÉÆAqÀÄ SÁ°Ã ¤ªÉñÀ£ª À £ À ÀÄß ¤ªÀÄä ¸ÀÄ¥sÀ¢ðUÉ ©lÄÖPÉÆÃnÖgÀÄvÉÛãÉ.
18. Then in the schedule of this agreement further recites that "¤ªÀÄUÉ F ªÉÆzÀ¯ÃÉ PÀA æ iÀÄ ªÀiÁrgÀĪÀ ¥Àvz Àæ ° À è gÉÆÃqÀÄ ¨ÁdÄ ©lÄÖ JAzÀÄ §gÉ¢gÀĪÀÅzÀg° À è G½¢gÀĪÀ d«ÄãÀ£Éßà ¤ªÀÄUÉ PÀA æ iÀÄ ªÀiÁrPÉÆnÖgÀĪÀÅzÀjAzÀ gÉÆÃqÀÄ ¨ÁdÄ £ÀªÀÄä d«ÄãÀÄ G½¢gÀĪÀÅ¢®è".
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19. For a better understanding of the above recital with regard to margin land, I find it necessary to extract here the boundaries of plaint 'B' schedule property sold to defendant's father on 20.11.1980.
¥ÀƪÀðPÉÌ - £ÀªÀÄä G½PÉ RÄ¶Ì d«ÄãÀÄ ¥À²ª Ñ ÀÄPÉÌ - aPÀÌ¥Á¥ÀAiÀÄågÉrØAiÀĪÀgÀ d«ÄãÀÄ GvÀÛgPÀ ÉÌ - £ÀªÀÄä G½PÉ d«ÄãÀÄ zÀQëtPÉÌ - ¦. qÀ§Æèöå . r gÀ¸ÉÛ gÉÆÃqÀÄ ªÀiÁfð£ï ©lÄÖ ¤ªÀÄUÉ PÀA æ iÀÄ ªÀiÁrgÀĪÀ ¸ÀévÀÄÛ F ªÀÄzsÉå EgÀĪÀ . . . . . . . . . 2 UÀÄAmÉ d«ÄãÀÄ F PÀA æ iÀÄPÉÌ ¸ÉÃjgÀÄvÉÛ.
20. Therefore upon considering the agreement and the sale deed, it is found that the portion of land transferred to the possession of the defendant's father was the land situate beside Varthur Main Road. If this is the picture that can be gathered, the plaintiff cannot say that 'C' schedule property was allotted to him in the partition; even if it is allotted, he cannot contend that an attempt was made by defendant to encroach upon his land.
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21. The next point is that although the defendant cannot take shelter under Section 53A of Transfer of Property Act, his possession of schedule 'C' property has a direct effect on the maintainability of the suit in the backdrop the reliefs that the plaintiff has sought for. The plaintiff has sought declaration of title over plaint 'C' schedule property and mandatory injunction for demolition of construction made there besides the relief of permanent injunction. The suit without seeking the relief of possession cannot be said to be maintainable. The argument of respondent's counsel is that in case the relief of mandatory injunction is granted, the plaintiff will get back the possession. This argument cannot be accepted. If the plaintiff was not in possession of property on the date of suit, he must seek the relief of possession also. If mandatory injunction is granted, the construction made thereon can be demolished, but it does not amount to taking 24 possession, reason being that in case possession is not voluntarily surrendered by the defendant, the plaintiff must be able to execute the decree to take possession according to Order XXI Rule 35 of CPC. To take recourse to this mode of execution there must be effective decree. Since the relief of possession is not sought, question of maintainability of suit arises; where maintainability of the suit becomes an issue, interim order in the nature of injunction or an order to preserve status of the suit property cannot be granted.
22. Looked from the above perspective, the existence of prima facie case for grant of temporary injunction does not appear to be probable. The proposition has been that prima facie case means plaintiff being able to make out a case for trial. Arriving at a satisfaction about existence of prima facie case should not be confined to examining whether there exists a serious issue for trial or not. Invariably in every 25 plaint, the plaintiff pleads cause of action, but this itself is not sufficient, for the relief that plaintiff claims must appear to be granted in the light of pleadings put forward.
23. In the present case the plaintiff has described the 'C' schedule property giving boundaries which are not the same as shown in the agreement of sale dated 18.6.1981. The southern boundary of a piece of land agreed to be sold to the father of the defendant is shown as Varthur main road. The northern boundary is shown as 'your house', that means the house belonging to the defendant, probably constructed in 'B' schedule property purchased by the defendant's father. But in the plaint northern boundary is shown as remaining land of plaintiff and southern boundary is shown as 'Subash Chandra Bose and Lakshamma'. The boundaries on the eastern side and the western side appear to be same. On what basis the plaintiff could 26 give these boundaries is not forthcoming. These boundaries appear to be totally inconsistent with the boundaries mentioned in the agreement of sale which is not disputed by the plaintiff. In fact, the plaintiff should have stated about the agreement of sale and power of attorney having been executed by his father in favour of defendant's father. There is suppression of this fact. It is not the case of the plaintiff that having executed these two documents, there took place some changes in the boundaries in course of time. When there is no explanation of any sort, it has to be stated that 'C' schedule property is not properly described. In the background of all these facts and circumstances I am of clear opinion that there is no prima facie case for grant of temporary injunction. The trial judge's conclusion that prima facie case has been made out by the plaintiff is in the background of invalidity of the transactions comprised in the agreement of sale and power of attorney, this cannot be upheld.
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24. The plaintiff further states that on 16.4.2017 the defendant started upon encroaching upon 'C' schedule property on the northern side and that he has actually encroached about 39 feet towards northern side abutting his land. The defendant's counsel agued that there was no encroachment. A building was already there and the defendant demolished it for the purpose of constructing a new building in his land. He also argued that building has come up to a certain level. Defendant has raised loan for constructing a building. If at this stage, construction activities are stopped, the defendant will suffer heavy loss and the trial court has lost sight of this aspect of the matter. He also submits that if the defendant is allowed to complete the construction he is ready to file an affidavit that he will not claim equities and that he will surrender the possession of schedule 'C' property to the plaintiff.
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25. The defendant has produced photographs to show the stage of construction. These photographs show that actually the first floor is under construction. As discussed above, the plaintiff has not sought for the relief of possession. This is a very important aspect to be considered. The defendant states that he is ready to surrender the possession of the 'C' schedule property without claiming equity in case plaintiff succeeds in the suit. At this juncture, I find it appropriate to place reliance on the judgment of the Supreme Court in the case of ECE Industries Limited (2) (supra). In this judgment, the Supreme Court in a situation as found in this case has held as below :-
"26. It is well settled that when construction has been made on a land, which is of considerable magnitude, and when the plaintiff shall not face any substantial injury, if no order of injunction is granted because of payment/deposit of the entire amount payable by the defendant to the plaintiff 29 under the agreement, though belatedly, we are of the view that the Court will not, as a matter of course, pass an order of injunction against the other party restraining the other party from raising any construction on the suit property till the disposal of the suit.
27. If ultimately, the suit filed by the plaintiff-appellant is decreed, he can be compensated in damages or the defendants/respondents may be directed to pull down the construction and deliver vacant possession to the plaintiff/appellant when no equity can be claimed for such construction by the defendants/respondents".
26. The High Court of Orissa has also held in the case of Surendra Moharana (supra) as under : -
"10. In the present case the petitioner has filed an undertaking not to claim any equity in respect of any construction made over the land merely on the basis of construction in case the suit is decreed and 30 partition is allowed. The present petitioner will suffer substantial injury if construction work is stopped as he has invested money and obtained permission for construction. It is well settled that when construction has been made on a land and when the applicant shall not face any substantial injury if order of injunction is granted as an undertaking furnished not to claim any equity for such construction by the defendants if ultimately the suit filed is decreed the party can be compensated any damages or the defendants may be directed to pull down the construction and deliver vacant possession to the applicant for injunction. In such a situation an order of injunction if granted against the defendants from proceeding with further construction in the suit property it will undoubtedly destroy the constructions already made by and he will suffer irreparable loss and injury for not allowing him to make such construction as such balance of convenience in his favour. Being a co-sharer he has a prima-facie case as parties have already dealt with the property 31 separately pursuant to the amicable settlement. Hence the impugned orders passed by the courts below are error apparent on the face of the record. The aforesaid view also fortified taking into consideration the decision of the Apex Court in the case of ECE Industries Limited vs S.P. Real Estate Developers Private Limited and Another reported in MANU/SC-1377/2009 :
JT 2009(11)SC 30.
11. In view of the discussions made hereinabove and considering the aforesaid settled position this Court sets aside the impugned orders in exercising the jurisdiction under Article 227 of the Constitution of India.
Liberty is granted to the petitioner to complete the construction over the part of suit schedule 'C' land which was allotted to his share with a mark of 'A' portion in the sketch map appended to the Interim Application in view of the undertaking furnished by him".
27. The above principles can be applied here also. Since construction had come up to a certain stage by 32 the time suit was filed, it cannot be said balance of convenience lies in favour of plaintiff and that he has right to seek the construction undertaken by defendant to be stopped. Thought it is not necessary to examine 'balance of convenience' and 'hardship' once prima facie case does not appear to exist, yet it is possible to say for the aforesaid reason but balance of convenience does not lie in favour of the plaintiff and that he faces no hardship also. Thus, it can be concluded from the foregoing discussion that the trial court has not exercised discretion properly and judiciously for granting temporary injunction against defendant. The same cannot be sustained. Hence, the following:
ORDER i. Appeal is allowed.
ii. Order dated 12.09.2017 passed on I.A.Nos.2 and 3 in O.S. 3336/2017 is set aside. I.A.3 is allowed and injunction is vacated.33
iii. The appellant/defendant is directed to file an affidavit in the trial court undertaking to vacate possession of schedule 'C' property in the event of plaintiff succeeding in the suit.
Sd/-
JUDGE sd