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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
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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
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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
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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
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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
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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
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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
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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.
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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/