1 S.B. CIVIL WRIT PETITION NO. 1907/2008 (Visa Ram Vs. Additional District Judge, Abu Road & ors.) Date of Order :: 16th May 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Suresh Shrimali for the petitioner ... BY THE COURT: Heard learned counsel for the petitioner and perused the material placed on record. The application dated 11.04.2008 (IA No.4509/2008) seeking to place the correct copy of reply to the temporary injunction application as Annexure-3, looking to the reasons stated, is allowed; and the document as filed with the application is ordered to be substituted as Annexure-3 to the writ petition in place of the previously filed Annexure-3 that may be placed in Part-B of the record. By way of this writ petition, the plaintiff-petitioner seeks to question the order dated 08.02.2008 (Annex.5) as passed by the Additional District Judge, Abu Road in Civil Appeal (Order) No.23/2007 affirming the order dated 17.09.2007 (Annex.4) as passed by the Civil Judge (Junior Division), Abu Road in Civil Misc. Case No.39/2007 rejecting the application for temporary injunction against raising of construction by the defendant on the land sought to be put in dispute in the suit 2 for perpetual and mandatory injunction as filed by the plaintiff- petitioner. The suit aforesaid has been filed on the allegations that the defendant-respondent No.3, having a residential plot on the western side of the plaintiff's plot, while raising construction has intruded into the plaintiff's property. The plaintiff-petitioner also filed an application for temporary injunction that the defendant be restrained from raising such construction during pendency of the suit. The defendant put the application to contest with the submissions that the plaintiff has not correctly stated the facts relating to the title, measurement, and location of his property; and asserted that she was raising construction only on her piece of land that was sold and handed over in possession by the plaintiff. The learned Trial Court has referred to the material available on record prima facie indicating that in relation to the plot of land sought to be asserted by the plaintiff as belonging to himself, conversion order was cancelled by the Tehsildar, Abu Road. The learned Trial Court has observed that the relevant plan and demarcation reports placed on record by the defendant prima facie indicate that she is rightfully in possession of the land purchased by her; and that the assertion of the plaintiff about any intrusion into his land does not appear correct. According to the learned Trial Court, the defendant has been able to show that the construction is 3 being raised on the land in her possession. The learned Trial Court has further found on the aspects of balance of convenience and irreparable injury that the plaintiff himself sold different plots of land to the defendant and her relative and handed over possession; that such possession of the defendant finds corroboration in the demarcation reports; and the defendant would suffer comparatively greater inconvenience and irreparable injury if prevented from raising construction on the land in her possession. The learned Trial Court has left it free for the plaintiff-petitioner to get his land demarcated from the Tehsildar and to remain in possession of the land belonging to him. The learned Appellate Court has endorsed the decision of the learned Trial Court particularly after finding that the assertion of the plaintiff-petitioner regarding location of his piece of land is not correct and is not corroborated by any specific demarcation report. Seeking to assail the orders aforesaid, learned counsel for the petitioner has argued on the basis of the decision of the Hon'ble Supreme Court in the case of Maharwal Khewaji Trust (Regd.) Faridkot Vs. Baldev Dass: 2005 (1) WLC (SC) 223 that unless a case of irreparable damage was made out, the Court should not have permitted raising of construction by the defendant so as to change the nature of the property during the pendency of the suit; and no exceptional 4 circumstance has been brought out wherefor the construction is required to be permitted during the pendency of the suit. The submission as made on behalf of the petitioner cannot be accepted in the fact situation of the present case. Noteworthy it is that in Maharwal Khewaji Trust's case (supra), it were a suit for recovery of possession and therein the plaintiff sought temporary injunction for restraining the defendants from alienating the property and putting up any construction thereat. The learned Trial Court in the said case granted an order of temporary injunction as prayed for. The Appellate Court, however, allowed the appeal holding that alienation if made would be subject to the law of lis pendens and the construction, if any, put by the defendant shall have to be removed at his own risk and costs in case of the suit succeeding; and the revision petition filed to the High Court came to be rejected on the basis of oral undertaking given by the counsel. The Hon'ble Supreme Court noticed that the High Court did not at all go into the question of prima facie case. In the backdrop of such relevant facts and aspects, the Hon'ble Supreme Court observed and held,- ''Be that as it may, Mr. Sachhar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made 5 out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored.'' The fact situation of the present case is substantially different. The plaintiff-petitioner has filed the suit seeking the reliefs of injunction with specific assertion that while raising construction the defendant has intruded into his land. The learned Courts below have concurrently found that the plaintiff has not been able to establish even the location of his land and on the contrary, the demarcation reports as placed on record by the defendant clearly show that the defendant is in possession of the piece of land sold and handed over in possession by none other than the plaintiff himself! Such basic findings take the aspect of prima facie case away from the plaintiff-petitioner and thus there appears no fault in the learned subordinate Courts refusing the prayer for temporary injunction. 6 It is not the case where only the delay likely to be caused in legal proceedings that has been considered as a ground for refusing the prayer for temporary injunction. In the face of the finding that the defendant is in possession of and is raising construction only on the land belonging to her and in an overall view of the matter, this Court is satisfied that the learned subordinate Courts have not committed any jurisdictional error in refusing the relief of temporary injunction; and no case is made out for interference in writ jurisdiction. The writ petition fails and is, therefore, rejected. MK (DINESH MAHESHWARI), J.