1 SB Civil Writ Petition No.4591/2008 Surajratan. vs. Harikishan & Anr. S.B. Civil Writ Petition No.4591/2008 Surajratan. vs. Harikishan and another. Date : 26.3.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.S Purohit, for the petitioner. Mr.A Vyas, for the respondents. - - - - - Heard learned counsel for the parties. The petitioner/plaintiff filed a suit for injunction alleging that the property in question measuring 3600 square feet belongs to him by virtue of sale deed executed in his favour as back as in the year 1994. Out of this property, some open piece of land was given by the plaintiff to the defendant no.1 for use only on license basis. The defendant became hostile to the interest of the plaintiff. Therefore, the present suit was filed by the plaintiff wherein the plaintiff sought injunction against the respondents. The respondents' contention is only that they are in 2 SB Civil Writ Petition No.4591/2008 Surajratan. vs. Harikishan & Anr. possession of the property and living in the house adjoining to the land in dispute. The land in dispute is measuring 30 ft. x 40 ft. The respondents applied for regularisation of the said plot falling between two houses over which the petitioner is claiming his title. The Commissioner was appointed who reported that if the dispute property is added in the area of the property of the plaintiff's house, then it will not exceed 3600 sq.ft. which is the measurement given in the sale deed. After considering all the aspects, the trial court vide order dated 27.7.2007 granted injunction against the respondents against their raising construction and against alienating the property in dispute. The appellate court by order dated 10.7.2008 modified the injunction order passed by the trial court dated 27.7.2007 and allowed the respondents to raise construction over the property in dispute on furnishing the undertaking that on the basis of the construction, they will not claim any equity in their favour. However, the appellate court upheld the trial court's order against alienating of the property by the respondents. 3 SB Civil Writ Petition No.4591/2008 Surajratan. vs. Harikishan & Anr. Being aggrieved by the order dated 10.7.2008, the petitioner has preferred this writ petition. Learned counsel for the petitioner/plaintiff vehemently submitted that the order passed by the first appellate court is perverse as the first appellate court itself upheld the finding of the trial court that prima-facie the property in question is owned by the plaintiff. The first appellate court also clearly observed that the respondents, since have no title over the property in question, therefore, he applied for regularisation of his plot before the local body. In view of the above facts, both the courts concurrently held that the plaintiff is owner of the property and the defendants have no right, title or interest. Mere possession as licensee cannot entitle the defendants to raise any construction over the property in dispute in a situation where the defendants admitted that there is no title in their favour. Learned counsel for the respondents/defendants vehemently submitted that the property in question is in possession of the defendants since 1984. The 4 SB Civil Writ Petition No.4591/2008 Surajratan. vs. Harikishan & Anr. petitioner purchased the property in the year 1994. It is also submitted that the respondents have applied for regularisation of the said plot by obtaining a title deed from a local body. However, the respondents will not claim equity in their favour on the basis of the construction. I have considered the rival submissions and have perused the facts of the case. There are several judgments wherein even during pendency of the suit, permission was granted to the defendant to raise construction but for that purpose, there must exist very strong grounds. Here in this case, when the two courts below found that there is prima-facie case that the plaintiff has title for the property measuring 3600 sq.ft. and the Commissioner also found that if the disputed property is included in the plaintiff's property, then also, it will not exceed 3600 sq.ft. The respondents admittedly have no title over the property in dispute and they are yet seeking title from the local body. In that situation, how the respondents can raise construction over the property when it is not 5 SB Civil Writ Petition No.4591/2008 Surajratan. vs. Harikishan & Anr. belonging to the respondents and till today, prima-facie, it is belonging to the petitioner or to the local body. In that situation, if the permission to raise construction is given to the defendants, then that certainly goes contrary to the settled principle of law that during pendency of the suit, the suit properties are required not to be altered. In view of the above, the order of the first appellate court clearly proceeds on capricious reasoning and interfere in the trial court's order was arbitrary. In view of the above, this writ petition is allowed, the order of the appellate court dated 10.7.2008 is set aside and the order of the trial court dated 27.7.2007 is upheld. (PRAKASH TATIA), J. S.Phophaliya