1 S.B. Civil Misc. Appeal No.336/2008 Smt. Krishn Priya & Ors. vs. Rajesh Dave. S.B. Civil Misc. Appeal No.336/2008 Smt. Krishn Priya & Ors. vs. Rajesh Dave. Date : 19.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.RK Thanvi, for the appellants. Mr.Ranjeet Joshi, for the respondent. - - - - - Heard learned counsel for the parties. The appellants are aggrieved against the rejection of their injunction application vide order dated 6.2.2008. The trial court by the impugned order while rejecting the appellants' injunction application, directed the respondent to furnish a written undertaking that in case, the appellants will be able to prove their right, title and share in the property in dispute, then the respondent shall vacate the suit property and hand over the possession to the appellant and will remove all construction at his own cost. 2 S.B. Civil Misc. Appeal No.336/2008 Smt. Krishn Priya & Ors. vs. Rajesh Dave. According to learned counsel for the appellants, the respondent raised the construction by overreaching the process of the Court and the trial court without entering into the merits of the case and merely on the ground of non-impleading of one of the sister of the defendant, held that the appellants have filed the suit malafidely. Learned counsel for the appellants further submitted that the appellants are entitled to grant of injunction and the respondent cannot raise any construction over the property. Learned counsel for the respondent submitted that the respondent has already furnished the undertaking in pursuance of the order of trial court dated 6.2.2006 and by this time, almost all construction has been completed by the respondent except fixing some tiles and which has been noticed by the Commissioner in his report dated 31.5.2008 who was appointed in pursuance of the order of this Court dated 12.5.2008. It is submitted that the respondent has already given undertaking that he will hand over the vacant possession to the appellants in case, the appellants will succeed in proving their claim in the Court and further submitted that the respondent will remove the 3 S.B. Civil Misc. Appeal No.336/2008 Smt. Krishn Priya & Ors. vs. Rajesh Dave. structure as per the direction of the Court if the appellants will succeed. I considered the submissions of learned counsel for the parties and perused the record as well as the impugned order. It appears that in a family dispute, a partition suit has been filed and the construction has already been raised by the respondent and the trial court also allowed the respondent to raise construction after taking undertaking as referred above, then this Court is not inclined to interfere in the impugned order on any ground as the relief claimed by the appellants at this stage cannot be granted as the construction has already been made by the respondent. Learned Commissioner has described the property which is in possession of respondent in the map and also gave details of the construction. Since the respondent has undertook not to raise further construction before this Court, therefore, in the interest of justice, it is ordered that in case, the appellants will succeed in the suit and the Court will pass the order, the respondent will hand over the vacant possession of the property in question to the 4 S.B. Civil Misc. Appeal No.336/2008 Smt. Krishn Priya & Ors. vs. Rajesh Dave. appellants as well as the respondent shall not claim either equity or cost on account of his raising construction only. In view of the above, the appeal is disposed of and the order dated 6.2.2008 shall remain till the decision of the suit with the condition that the respondent shall have no equity in his favour because of raising of construction and the respondent shall not raise any construction nor make any addition or alteration without the leave of the Court. The respondent shall be free to make the finishing work only. (PRAKASH TATIA), J. S.Phophaliya