JUDGMENT
D.K. Kapur, C.J.
(1) In this appeal, an interim application was moved for the purpose of interim stay in respect of the injunction granted by the learned single Judge We find that the questions covered by the interim application arc almost identical with the questions covered by the appeal. Having heard arguments on the interim application, we think the appeal can also be decided in the same terms. So, the appeal and the interim application are being decided together by this order.
(2) The learned single Judge had granted the injunction to restrain the making of construction on the plot in question. This injunction was granted because the case of the plaintiff is that the land on which the defendant Shri Subash Chand is in the process of constructing the building is the land belonging to the plaintiff as a result of a sale deed executed on 27th September, 1985. The case of the said defendant, on the other hand,is that he had purchased that land by an deed dated 1st March, 1986. It so happens that the sale deed in favor of Shri Subhash Chand was executed by Smt.Satya Wati Chaudhry wife of Ch.Braham Parkash on the footing that she was the owner of the laid. On the other hand, sale deed in favor of the plaintiff has been executed by a power-of-attorney-holder of Ch. Braham Parkash. The case of the plaintiff is that this is in furtherance of a very old agreement to sell whereby there was a scheme for developing land belonging to the husband and wife which was put at the disposal of a firm called the Capital Land Builders Pvt. Ltd., who in turn entered into various agreements whereby the plots were to be transferred to various persons. The case of the plaintiff is that he had paid for this land in 1966 and the sale deed executed in his favor by the power of attorney holder was in furtherance of this scheme.
(3) The case of both the parties turn on which of these sale deeds is effective. It may be that the sale deed in favor of Subhash Cband is ineffective because the land in question never belonged to Smt. Satyawati. On the other hand, the sale deed would be effective if the land did belong to her. Similarly, the sale deed in favor of the plaintiff would be effective if the land belonged to Ch. Braham Parkash and not to his wife Smt. Satya Wati. Learned counsel for the plaintiff states before us that even if the land d’d not belong to Ch. Braham Parkash he would be entitled to get the possession. But this to our mind is not a question which we have to decide at this stage. It is sufficient to say that both the parties have arguable case and will be determined on the facts eventually found in the suit. We are not really to decide about the suit at this stage. We have to make provision for the possible result in the suit and to see what is to happen to the property during the pendency of the suit.
(4) The factual position qua the property is as follows ; “The defendant who is appellant in one of the appeals before us, Subhash Chand, appears to have paid Rs. 1.44.000.00 for the purchase of the land to Smt. Satyawati and be has also made a substantial construction which is incomplete at the present stage on the land. It is said that a sum of Rs. 2 lakhs has been spent on this construction. Even if it is exaggerated, it can be said that some substantial sum has been spent on making the partial construction. It is also said that if the construction is left in the present state, the raids will come and the building will fall down so something should be done to allow the construction to be made. We feel that interest of justice demand that some provision should be made which would safeguard the interest of both the sides without causing much harm to either side.”
(5) In order to see what such order can be, we can imagine what may happen if no construction is made. Then the building will be blocked in its present stage of construction and no benefit will come to the defendant Subash Chand but we do not see how this will benefit the plaintiff. On the other hand, if the construction is made, then it can be enjoyed by Subash Chand but in case the plaintiff succeeds we must ensure that it is given in a vacant state to the said successful plaintiff. In order to get this result we have decided to accept appellant Subash Chand’s statement (made by his counsel) that the building will be constructed at the risk and cost of Subash Chand, who will, within six months of an adverse decree being passed against him, remove the construction without any reservation or claim for damages, etc. In other words the vacant possession will be given within six months. Also, he will not induct any tenant in the building after construction because the induction of such tenants may clause difficulty in the demolition of the building if ncessary. Shri Subash Chand is present. His undertaking in this behalf is recorded. We make it clear that the undertaking will be operative unless the matter goes up in appeal and if a stay is obtained, the undertaking will continue to operate till the final adjudication is made. In this way, we have balanced the equity between the two parties. This order will decide both the appeal as well as the interim application.