1 S/1 S.B. CIVIL WRIT PETITON NO.2185/2008. Bhagwan Raj Vs. Badri Narayan & Ors. Date of Order :: 30th May 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Rakesh Arora, for the petitioner. Mr. B. K Bhatnagar with Mr. P.R. Prajapat, for the respondent No. 1. ..... BY THE COURT: The defendant-petitioner has preferred this writ petition against the order dated 17.03.2008 (Annex. 9) as passed by the District Judge, Jalore in Civil Appeal (Order) No. 4/2008 whereby the learned Appellate Court has reversed the order dated 11.03.2008 (Annex.8) as passed by the Civil Judge (Junior Division), Jalore in Civil Misc. Case No. 19/2008. The contesting parties are having their adjoining residential plots at Khanpurawas, Jalore; the defendant- petitioner's plot being towards northern side of the plaintiff's plot. The plaintiff-respondent No. 1 is said to have raised construction after purchasing his plot on 15.10.1981. The dispute pertains to the wall situated on the northern side of the plaintiff's plot that is claimed by the plaintiff to be of his exclusive ownership; and in the suit for perpetual injunction, the plaintiff has alleged that the defendant is attempting to raise unauthorized construction on the said wall. By way of interim relief, the plaintiff-respondent No. 1 sought temporary 2 injunction against raising of construction by the defendant- petitioner at the disputed wall marked B to C in the plan attached to the application for temporary injunction (Annex. 3). By its order dated 11.03.2008 (Annex.8) the learned Trial Court has proceeded to reject the prayer for temporary injunction particularly with the observation that prima facie the defendant appears to have purchased the land with the said wall; and that the plaintiff has not stated precisely in his application and affidavit if he has constructed the wall in question or that he purchased the plot with the said wall. The learned Trial Court has also pointed out that the nature of construction on the plaintiff’s side on the wall in question as shown in the photographs submitted with the Commissioner's Report make out that the roofing slabs were not placed by the plaintiff across such wall but were placed only parallel to the same and there were no other elements available like placing of Almirah in the wall whereby it could be concluded that the wall has been in the exclusive use of the plaintiff. The learned Trial Court has further observed that the defendant has raised construction of the ground floor in the year 1986-87 after taking permission from the Municipal Board, Jalore and has further obtained permission for raising construction on the first floor on 01.01.2008 and the Commissioner’s report indicates that the construction on the first floor is in progress. The 3 learned Trial Court has rejected the prayer for temporary injunction of restraining the defendant from completing his construction on the wall in question and has conversely issued an injunction against the plaintiff not to create any obstruction in raising of such construction. The learned Appellate Court by its order dated 17.03.2008 (Annex.9) has, however, proceeded to reverse the order passed by the learned Trial Court with the observations that both the parties have purchased their plots from the same predecessor Champa Lal; that at the time of purchase of the plot by the plaintiff, it were an open piece of land and, according to the plaintiff, he has placed the walls surrounding the land and has raised the residential construction; that the defendant has purchased the plot later, on 05.08.1993, and towards southern side of the land sold to the defendant has been shown the plot of the plaintiff Badri Narayan and a 32 ft. wall has also been shown. The learned Appellate Court has concluded that the wall in question was constructed by the plaintiff with the observations that the defendant was not even aware as to who has constructed the wall; that it does not appear from the sale deed if the wall was raised by the predecessor Champa Lal; and that affidavit of the said Shri Champa Lal has not been filed. The learned Appellate Court has not approved issuance of injunction against the plaintiff 4 and has observed that the parties are to establish the ownership of the wall in question in the trial and in such a situation, by way of temporary injunction the defendant cannot be permitted to raise construction. The learned Appellate Court has, therefore, proceeded to issue injunction against the defendant and has directed status quo in relation to the wall in question to be maintained by both the parties till the decision of the suit. It is contended on behalf of the petitioner-defendant in this writ petition that he is the exclusive owner of the wall in question and such fact stands established from the sale deeds of the parties as produced on record and the learned Appellate Court has acted illegally in issuing injunction against the petitioner. It is further contended that the Appellate Court did not consider the fact that the petitioner had already raised his first floor construction up to the roof level and RCC plates were also placed; and stopping of construction at this stage would cause serious injury and loss to the petitioner without corresponding protection of any of the rights of the plaintiff. Learned counsel for the plaintiff-respondent No. 1, on the other hand, has duly supported the order impugned with the submissions that the claim of the defendant of ownership of the disputed wall is fundamentally baseless as it is apparent that the wall was constructed by the plaintiff only and the 5 attempt on the part of the defendant-petitioner to raise construction on the wall in dispute and thereby to take over such wall could not have been countenanced and the learned Appellate Court has, therefore, rightly issued the injunction against the petitioner. During the course of submissions, apart from the photographs produced on record as Annexure-10, learned counsel for the parties have shown various other photographs of the construction at site and the position obtainable is that barring completion of the roof on the wall in dispute, the petitioner has already raised substantial construction on the ground and the first floor. Looking to the nature of dispute and the material available on record, the view as taken by the learned Trial Court cannot be said to be unjust or against sound judicial principles and there was little scope for interference in appeal. However, the learned Appellate Court has commented that affidavit of the predecessor Champa Lal has not been filed and has proceeded to deduce from the recitals in the sale deeds that the wall was constructed by the plaintiff. The finding that the plaintiff alone had constructed the wall in dispute is difficult to be arrived at this stage only from the sale deed in question; and merely because the defendant has purchased the land later and in his sale deed, a wall in 32 ft. length is stated 6 existing on the southern side, it cannot directly be concluded that the wall is of exclusive ownership of the plaintiff. The learned Appellate Court has observed that the wall in 32 ft. length has been stated in the defendant's sale deed to be existing towards the plaintiff's side and it has not been stated that the wall has been of exclusive ownership of the vendor Champa Lal. It is difficult to countenance the approach of the learned Appellate Court that merely for sale deed of the defendant not stating the wall in question to be of exclusive ownership of the predecessor Champa Lal, injunction was required to be issued against him. Further, the learned Appellate Court has not considered the other aspects of the matter where the learned Trial Court has observed the ingredients of balance of convenience and irreparable injury are not in favour of the plaintiff, particularly when the defendant is raising construction at the first floor after taking permission from the Municipal Board. The impugned order dated 17.03.2008 (Annex.9) cannot be sustained for the reasons: (i) that the finding as recorded by the learned Appellate Court on prima facie case appears to be more on surmises rather than on legal inferences; (ii) then, the aspects of balance of convenience and irreparable injury have not been precisely considered by the learned Appellate Court and the construction has not been countenanced on the 7 observations that permitting of such construction would frustrate the purpose of the suit and unnecessary complications and disputes would arise whereas in the overall fact situation of this case, the finding of the learned Trial Court that the balance of convenience is not in favour of the plaintiff cannot be said to be wholly unjustified particularly when it is found that the defendant-petitioner has otherwise raised substantial construction on the first floor; (iii) and then, for the order passed by the learned Trial Court refusing the prayer for temporary injunction after taking note of the material available on record and the principles of law applicable to the case having not been shown suffering from any perversity, arbitrariness, or disregard of any relevant judicial principle, the Appellate Court has obviously exceeded its jurisdiction in interfering with the discretionary order refusing temporary injunction merely on the basis of its different view of the matter. The impugned order dated 17.03.2008 is, therefore, required to be set aside. After looking at the photographs as placed on record and as shown during the course of arguments, this Court is clearly of the opinion that no purpose would be served by simply prohibiting the defendant-petitioner from raising construction on the wall in dispute and continuing with such injunction would be rather leading to comparatively more 8 inconvenience and hardship to the petitioner. In the overall circumstances of the case, during the course of submissions yesterday, after noticing some space for Almirah having been left by the petitioner on the wall in dispute, this Court expressed prima facie view that even if the petitioner is permitted to complete his construction, apart that he would be required to submit specific undertaking not to claim equity only on the basis of raising such construction, it shall also be required of him to close down such Almirahs etc. and to keep the wall plain. In response to the observations made by the Court, the petitioner has placed on record today a photograph showing that such space of Almirah etc. on the wall in question have been filled up making it plain. Having regard to the facts and circumstances of this case, this Court is of opinion that interest of justice shall be served if the defendant-petitioner is permitted to complete his construction including that on the wall in question in accordance with the permission obtained from the Municipal Board but only upon his submitting a undertaking to the Trial Court that he shall not claim any equity merely for having completed such construction and to abide by the final decision in the suit and to remove his construction, if so required at the final decision of the suit and not to place any Almirah or any opening on the wall in dispute. 9 Accordingly, this writ petition is allowed to the extent indicated above; the impugned order dated 17.03.2008 as passed by the learned Appellate Court is set aside; the order dated 11.03.2008 as passed by the learned Trial Court is restored but with the modification that the defendant-petitioner shall be entitled to complete his construction including that on the wall in question upon his submitting a specific undertaking to the Trial Court that he shall not claim any equity merely for having completed such construction and shall not place any Almirah or any opening on the wall in dispute and shall keep the same plain; and shall abide by the final decision of the suit and shall remove his construction, if at all required at the final decision of the suit, at his own costs. There shall be no order as to costs of this writ petition. (DINESH MAHESHWARI), J. Mohan/