The Judgment of the Court was delivered by
Hanumanthappa, J.:— The points to be considered in this appeal are:—
(1) Whether there can be any order of Temporary Injunction in respect of a property wherein plaintiffs claimed that they have an undivided share?
(2) Whether as per Section 6 sub-section (2) read with Section 4 of Mysore Hindu Women's Right to Property Act of 1963, plaintiffs are entitled to Succession to property?
(3) Whether the Succession should go according to the order as mentioned in those two Sections viz., by way of succession or by survivorship?
(4) Whether as per Section 6(2) of the Act inspite of the words used ‘male’ or ‘female’, can it be said that both male and female succeeds to the property simultaneously or male excludes female, son excludes widow and daughter etc.
(5) Can there be an injunction order even in the absence of a prima facie case made out as on the date of filing the suit and in the absence of balance of convenience?
(6) Even when it is shown that plaintiffs have made out a prima facie case when greater hardship is going to be caused to the defendant No. 3 if an injunction is granted, is it not proper to decline to grant injunction provided it is shown the harm or injury that is going to be caused to the plaintiff can be adequately and effectively compensated at a later stage when suit decreed in favour of the plaintiffs?
2. Keeping the above ingredients, now this Court has to see whether the trial Court was justified in refusing to grant an injunction as claimed by the plaintiffs or not.
3. A few facts are as follows:—
That in the year 1952 one Chinnappa Mudaliar (father of plaintiffs 1 and 2), one Subramani, another Muniswamy and the first defendant were the owners of two items of property of which suit schedule property, a portion in Item No. 2 which measures about 18′ × 80′ is one. During the year 1952 Chinnappa Mudaliar died leaving behind him plaintiffs 1 and 2, the two daughters, his sons Subramani and Muniswamy and defendant 1. Thus succession opened as he died intestate. The property in question was a self acquired property of Chinnappa Mudaliar. As on the date of his death, both plaintiffs were unmarried.
4. On 17-10-1956 defendant-1 and her two sons Subramani and Muniswamy sold the schedule property to one Aralappachar, from whom defendant-3 who is one of the partners of Vijaya Enterprises, purchased the schedule property on 21-9-1987 for a valid consideration under a registered sale deed.
Pursuant to the sale deed dated 21-9-1987, 3rd defendant who is respondent herein, proceeded to construct a complex on either sides of the property belonged to him including the schedule property which is abutting the other property, on which the plaintiffs have no claim.
5. According to the plaintiffs, at no time their share in the schedule property was sold to any one. The transfer, if any, made either by defendant-1 or Subramani and Muniswamy brothers of the plaintiffs, not binding on them. After marriage they were staying in their husband's houses. Only recently when they came to the premises they saw some workers demolishing the old house existing on the schedule property. On enquiry it was made out that defendant-3 purchased it on 21-9-1987. They immediately rushed to the concerned officer and after obtaining certified copies of the sale deed felt that the approach of defendant-3 in proceeding to put up a construction on the site belonging to them is incorrect. Hence, they filed a suit for the following reliefs:—
(i) Declaring that the plaintiffs are entitled to 2/5th share in Item No. II of the plaint schedule and that the sale deed executed by second defendant in favour of third defendant dated 21-9-1987 in respect of Item No. II of plaint schedule does not affect the plaintiff's right, title and interest in respecct of their 2/5th share therein, and also the sale deed dated 17-10-1956 executed by 1st defendant and the same does not affect plaintiff's right to their 2/5th share.
(ii) For partition and separate possession of the plaintiffs 2/5th share in the plaint schedule Item No. II and
(iii) For costs of this suit from the defendants together with such other relief or reliefs as this Hon'ble Court be deemed fit under the facts and circumstances of the case.”
Thus, the reliefs sought by the plaintiffs in the suit are for partition and possession of the plaintiffs 2/5th share in Item No. 2 of the suit schedule property and to declare that the sale deeds dated 21-9-1987 and 17-9-1956 are not binding upon them.
They also filed an application under Order 39 Rules 1 and 2 CPC requesting that the defendants be restrained from putting up any construction on the property in dispute or alienating the entire property or any part of it to others. In support of their application filed under Order 39 Rules 1 and 2 CPC, plaintiffs have stated that defendant-3 being a rich person managed to get his name entered in the concerned records of the Corporation. The sale deeds are not binding on them as per Section 6(2) of the Hindu Women's Right to Property Act 1933. Immediately after the death of their father, their mother and their two brothers were entitled to succeed to the property left behind by their father, who died intestate. Defendant-1 and her sons could not have sold the entire property at Item No. 2 of the schedule. At best they could have sold only their 2/5th share and not the 2/5th share of the plaintiffs. If defendant-3 is allowed to put up construction, great harm and injury would be caused to the plaintiffs as it would be very difficult for them to get back the property if ultimately the suit is decreed in their favour. If building is now allowed to be constructed on the schedule property at the time of execution it may be very difficult for the plaintiffs to execute the decree as defendant-3 may put forth the plea of equity. By allowing construction, defendant-3 may defeat the very rights of the plaintiffs to execute the decree as he may create encumbrances on the property by leasing out shops or houses put up on the disputed site to others. Thus, ultimately it results in multiplicity of proceedings.
6. For these reasons, plaintiffs submitted that an order of injunction be granted in their favour.
7. Defendant-3, since notice served, filed his written statement denying the claim of the plaintiffs. No doubt, defendant-3 does not dispute the ownership of the property during the life time of Chinnappa Mudaliar as his self acquired property. But his case is that in view of Section 6(2) read with Section 4 of the Act, the property does not devolve by succession or Survivorship or both the male and female would succeed to the property simultaneously but it shall be only in accordance with the order as contemplated therein viz., (1) Male (son), (2) Widow, (3) daughter. In the year 1952 Chinnappa Mudaliar died intestate. Thus, for the first time succession to the property opened during the year 1952. As both sons and widow were alive as on the date of his death, in view of the order of succession, these three persons inherited the property. They sold the same viz., Item No. 2 of the scheudle property on 17-10-1956 under a registered sale deed. As on that day, plaintiffs had no interest whatsoever in the said property. Subsequently defendant-1 purchased Item No. 2 from 3rd defendant on 21-9-1987 for a valid consideration under a registered sale deed.
8. At no point of time plaintiffs were in possession and enjoyment of the schedule property. Even otherwise, defendant-3's vendor and his predecessor in title had perfected their title to the property in question by way of adverse possession, because since 1956 up to the date of suit either this defendant or his vendor or predecessor in title were in possession and enjoyment of the property openly, continuously and to the knowledge of the plaintiffs. Apart from not having any right or interest in Item No. 2 of the schedule property, there is nothing to show that at any time the plaintiffs were in possession and enjoyment of any portion of Item No. 2 of the schedule property. According to defendant-3, the allegations made in the plaint are vexatious in nature. The claim is quite imaginary. Hence the suit be dismissed.
9. To IA-1 filed under Order 39 Rules 1 and 2 CPC, defendant-3 filed IA under Order 39 Rules 3 and 4 CPC requesting that the order of ex parte injunction granted earlier be vacated. The grounds made out in the affidavit filed by the 3rd defendant in support of IA for vacating injunction are the same what as stated in the written statement in addition to explaining that if the injunction is not vacated great hardship would be caused to defendant-3 since he has invested huge sum to put up the construction on the property owned by him including Item No. 2 of the schedule which he acquired under sale deed dated 21-9-1987. He contended that there cannot be any injunction since plaintiffs have not made out a prima facie case. According to him, balance of convenience lies in his favour and not in favour of the plaintiffs. He also submitted that no harm or injury will be caused to the plaintiffs if the defendant is allowed to proceed with the construction and if necessary the Court may impose certain conditions viz., that in case suit is decreed, defendant - 3 shall demolish the building put up on the schedule property belonging to the plaintiffs.
10. Since urgency was involved, the I.As filed by both the parties were taken up for consideration by the trial Court.
The points which arose for consideration for disposal of I.As were as follows:—
(1) Whether the plaintiffs have made out a prima facie case?
(2) What is the legal right of the plaintiffs?
(3) Where lies the balance of convenience?
11. Point No. 1 held in the negative. Regarding Point Nos. 2 and 3, the trial Court vacated the order of injunction granted.
12. Challenging the said order, plaintiffs have filed this Appeal contending that:—
(i) The trial Court was not right in vacating the order of injunction granted earlier in a most arbitrary and perverse manner;
(ii) the trial Court has committed an error in coming to a conclusion that as per Section 6(2) read with Section 4 of the Act all the legal heirs, irrespective of male or female, sons, widow or daughter, would succeed to the property simultaneously.
(iii) The order of succession as defined in sub-section (2) of Section 6 of the Act viz., male or female shall be read as ‘Male’ and ‘Female’. The important ingredient to grant injunction viz., irreparable injury and harm that may be caused to the party in case injunction is not granted was not considered by the trial Court;
(iv) When the plea of adverse possession was not accepted by the trial Court, the order of injunction granted earlier should have been made absolute;
(v) The trial Court should have taken into consideration that if defendant-3 is allowed to proceed with the construction, great hardship would be caused to the plaintiffs in the event they succeed, as by which time defendant-3 would complete the construction and plaintiffs may find it very difficult to get possession of the property as the occupants of the building so constructed and leased out by the 3rd defendant got to be vacated.
13. Trial Court should have noticed in matters of this type whether by allowing things to go in the way as desired by the 3rd defendant, would ultimately prove as onerous to plaintiffs to execute the decree and it is proper to order to maintain status quo instead of granting injunction. In support of their contention, plaintiffs also relied upon some of the provisions of the 1933 Act, viz., Section 6 read with Section 4 of the Act shall be read along with Section 3(j) of the Act. If all these provisions are read together, according to the plaintiffs, the conclusion will be that inheritance shall be simultaneous and not by way of succession. In view of Section 3(j) of the Act, the word which appears between male and female in Section 6(2) of the Act shall be read as ‘and’ as according to them that always shall be interpreted in such a way so as to bring out the real intention of the Legislature. Under similar circumstances, according to plaintiff in Maxwell's Interpretation of Statutes at pages 232 and 233 the word ‘are’ occurred therein suggestive to be read as ‘and’.
14. The Authorities relied upon by defendant-3 are:—
1960 Mys. L.J page 4781 interpreting the scope of Section 6(2) of the Act held as follows:—
“A suit for declaration that a decree for partition and possession against plaintiff was null and void was dismissed.
Held: (1) Order 41 Rule 5 CPC was not appropriate for seeking stay of execution of a decree which is not the subject matter of appeal.
(2) In substance the application was one for a temporary injunction restraining the decree holder from executing the decree and Order 39 Rule 2 CPC applies to a case where a party seeks an injunction in respect of a decree the validity of which is challenged whatever ground it may be.
(3) A temporary injunction can be granted under Order 39 Rule 2 CPC, only in a suit where the plaintiff seeks for a relief by way of a permanent injunction and, as no such prayer was to be found in the present suit, an order under Order 39, respondent 2 cannot be made.
According to the plaintiffs, the above decision has no application to the case in question. According to them, the principles laid down in the following decisions are applicable to the case in question.
(1) AIR 1955 Madras, page 2882 it is held as follows:—
“A person, who purchases an undivided share of a coparcener of a joint Hindu family, cannot claim to be put in possession of any definite piece of family property. He does not even acquire any interest in the property sold. He does not become a tenant-in-common with the members of the family. He is not entitled to joint possession with them. He has only an equity to work out his rights by means of a partition standing in his vendor's shoes. The alienees' suit for partition must be one for partition of the entire property and not for the partition of any specific item or, or interest in, the family property. Such a suit, however, will not be technically on par with a suit for partition filed by a coparcener. Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of the family.
A suit by an alienee of an undivided share from a coparcener of a Hindu joint family, will fall under Article 144, so long as property concerned is immovable property.”
In 1974 (1) Kar. L.J page 443 it is held as follows:—
“Two stranger purchasers who purchase from two different coparceners of a joint family their undivided interests in the family separately, cannot claim to be in joint possession of the erstwhile joint family properties, because there is no community of interest or agreement for joint possession. They have to divide the properties by agreement or suit for partition. Until that is done, neither of them can claim to have a right to joint possession with the other and cannot claim mesne profits.”
In ILR 1987 KAR page 28634 it is held as follows:—
“In view of the clear amendment introduced by Rule 1(c) of Order 39, it becomes crystal clear that even though no relief of permanent injunction is sought for in the suit, still the Court has got jurisdiction to grant the temporary injunction in order to maintain the status-quo between the parties and in aid of the final relief that might be granted in the suit.
Even though the suit might have been filed for partition and possession, the grant of temporary injunction would be in aid of the final relief of partition and possession that has been sought for by the party.”
In AIR 1984 Gujarat page 1265 at page 133 it is held as follows:—
“Then remains Civil Application No. 3780 of 1982 for injunction against respondent Laxmandas Chanechaldas. It has been contended by Mr. P.V Nanavati for the appellants and Mr. P.G Desai for respondent Laxmandas that the request of plaintiff-respondent No. 1 to get injunction against him is not justified because whatever transactions have taken place earlier and those that would take place in future right title and interest of plaintiff-respondent No. 1 and, therefore, this Court should not grant injunction. A very serious argument about the valuable right of a party to dispose of his undivided share in the property in any way he chooses was advanced and it was stated that a right of a person to deal with his undivided share would remain uncontrolled and whatever transaction would be made by a co-owner vis-a-vis his undivided share would be subject to right of a person who has also a share in the property. So far as principle of law about the undivided share of co-owner is concerned, no objection can be raised about it. The Court is, however, seized of the matter pertaining to the property. Pending the litigation, the property was transferred and, therefore, this respondent Laxmandas had to come on record, the matter is still to go back to the trial Court for final decree. If during that period property would change hands with any other persons, would it not be necessary either for the plaintiff or somebody else to bring all parties on record, meaning thereby, delaying further proceedings for bringing them on record, having their say, etc., and thus delaying the passing of final decree? The Court should always lean towards seeing that there is no multiplicity of proceedings and also that the proceedings should go on as far as possible so smooth that the decision can be arrived at between the parties who are on record as early as possible. If injunction is not granted, then probably the result would be as mentioned by us above and, therefore, it is in fitness of things that Civil Application No. 3780 of 1982 should be allowed and the relief prayed for therein is granted.”
The Advocate for the plaintiffs/appellants contended that the order under challenge is erroneous one and argued that the appeal be allowed and the exparte order of temporary injunction that was granted earlier by the trial Court be made absolute.
15. As against this argument Sri Bhujanga Rao, learned Counsel for the respondents submitted that none of the contentions reused by the Appellant have any merit. According to him it is Section 6(2) read with Section 4 of the Act which apply and not otherwise. In the absence of any arbitrariness or perversity of the order passed by the trial Court, this Court as an Appellate Court shall not interfere very lightly.
16. So called injury and hardship pleaded by the plaintiffs can very well be amoliorated in case suit is decreed in his favour by awarding compensation or if necessary this Court may even put certain condition. For these reasons Sri Bhujanga Rao submits that appeal be dismissed as no merits.
For me, Authorities relied upon by Sri Bhujanga Rao in support of plaintiff's case neither any relevancy or any bearing to their case. According to him principles laid down in 1960 Mys. L.J page 478 and 1982 (1) Kar. L.J page 176 are applicable.
Defendant-3 has already started construction by raising funds. If at this juncture he is prevented from completing construction, great hardship would be caused to him and definitely not to the plaintiffs.
17. After hearing both sides and also going through the order under challenge including authorities relied upon by both sides, I am of the view that the appeal of the plaintiffs has to be dismissed for the following:—
REASONS
(1) It is not in dispute that Chinnappa Mudaliar died in the year 1952. The property was a self acquired property. At the time of his death both the plaintiffs and the two sons viz., Subramani and Muniswamy were minors. Defendant-1 was his widow. Succession opened by virtue of his death. At that time law that was prevailing in respect of right of women to claim for any property or share was the Mysore Hindu Womens' Right to Property Act, 1933.
Case of the plaintiffs is that they have 2/5th share in Item No. 2 of the schedule property. They want that the same be partitioned and they be put in possession of their separate share of 2/5th. It is their strong contention that the sale deeds dated 21-9-1987 and 17-9-1956 are not binding on them as they were not parties to the said sale deeds. The law is well settled that there cannot be an injunction in respect of an unascertained or undisputed (SIC: undefined) property. In the instant case their right to claim 2/5th share in Item No. 2 of the property is just a moot point. They claim it but defendant-3 denies it. Ultimately if it is held that plaintiffs are entitled for a decree of partition and possession of the 2/5th share, their share will be ascertained only at a later stage and now itself it cannot be said which is the ascertained portion or the definite portion of the plaintiffs. Further, if it is assumed for the sake of argument, that the plaintiffs have a right to claim their share, definitely there cannot be any injunction in respect of an undivided share of plaintiffs. As such, shares are to be decided at a later stage only, namely when the regular evidence is led in by both the parties and their shares are ascertained as per law. But the parties are now not at that stage. They are still on preliminary stage viz., whether the defendant be restrained in putting up any construction or of alienation.
18. According to me, even if Sections 6(2) and 4 read with Section 3(j) of the Act are read together, by virtue of Chinnappa Mudaliar's death (1) the succession will be, only in the order as mentioned in Section 6(2) of the Act viz., male or female and not male and female. Secondly, order of succession shall be, in case, a male dies intestate, succession is first by son who excludes widow. If son is dead, widow succeeds and if both are dead then daughter. Widow excludes daughter and if son and widow are absent then daughter succeeds. This, position has been further clarified in the case reported by this Court in 1982 (1) Kar. L.J page 17. The relevant Section reads as follows:—
“3. In this Act, unless there is anything repugnant in the subject or context -
(j) “propositus” means the person whose relatives are to be reckoned;
4. (1) The Succession to a Hindu male dying intestate shall, in the first place, vest in the members of the family of the propositus mentioned below, and in the following order:—
(i) the male issue to the third generation;
(ii) the widow;
(iii) daughters;
(iv) daughters' sons;
(v) the mother,
(vi) the father;
(vii) widow of predeceased sons;
(viii) sons' daughters;
(ix) daughters' daughters;
(x) brothers of the whole blood;
(xi) brothers of the half blood;
(xii) sons' sons' daughters' sons' daughter sons' sons' daughters' daughters, daughters' daughters' sons, and daughters' daughters' daughters;
(xiii) widows of predeceased grandsons and great-grandsons.
(2) On failure of the family of the propositus, the succession shall pass to the family of the father of the propositus mentioned below, and in the following order:—
(i) brothers' male issue to the second generation;
(ii) sisters;
(iii) half sisters;
(iv) sisters' sons;
(v) half sisters' sons;
(vi) the fathers' mother;
(vii) the fathers' father;
(viii) step-mothers;
(ix) brothers' widows;
(x) brothers' daughters;
(xi) sisters' daughters;
(xii) father's brothers of the whole blood;
(xiii) father's brothers of the half blood;
(xiv) brothers' sons' daughters, brothers' daughters' sons, brothers' daughters' sisters' sons' sons, sisters' sons' daughters' sisters' daughters' sons, and sisters' daughters' daughters;
(xv) widows of brothers' male issue to the second generation.
(3) On failure of the family of the father of the propositus, the succession shall pass to the family of the paternal grand-father, the members of each family ranking among themselves in the same relative order as the members corresponding to them in the family of the father.
(4) On failure of the families of paternal ancestors to the third degree as above, the succession shall pass to the maternal ancestors to the third degree and their respective families, one after the other, and under the same Rules mutatis mutandis as to relative orders within each such family as are applicable to the families of the paternal ancestors.
(5) The members (where there are more than one) of each of the groups indicated above by Roman numerals and of the groups corresponding to them under sub-sections (3) and (4) shall among themselves, take simultaneously and in equal shares (per capita), provided that the male issue of the propositus shall take according to stock (per stripes).
(6) Every reference to the son of a female relative in this Section shall be read as excluding a son adopted after the death of such female relative.
6(2). Such separate property of a person shall, in the event of his dying intestate, pass by succession to his own heirs, male or female.”
Thus, I have to hold that the succession takes place not simultaneously, by both male and female as contended by Sri Rama Rao but it shall be only in accordance with the order as mentioned in Section 4 of the Act. Thus, succession not by survivorship but by succession. Of course, as far as possession is considered, the same is not disputed by Sri Rama Rao. Regarding prima facie case and balance of convenience no doubt, unfortunately the trial Court while discussed so elaborately about ‘adverse possession’ and argueable case and not vexatious one, but failed to consider whether plaintiffs have made out a prima facie case for injunction, in whose favour balance of convenience lies etc. The trial Court satisfied itself about argueable case and making reference to the provisions referred to above, held plaintiffs are not entitled for injunction. It would have been better if trial Court had taken up for consideration prima facie case particularly when sufficient material is made available by both the parties including presenting their pleadings before Court.
19. The relief claimed by the plaintiffs are that there shall be a declaration in respect of Item No. 2 of the schedule property on the ground that sale deeds referred to above are not binding on them, there shall be a partition and separate possession. Nowhere in the plaint it is said that as on the date of filing of the suit, plaintiffs were in possession of the schedule property. Just a one line averment has been made in the affidavit filed in support of the plaint that they are in possession of the property. But it is not stated when they came in possession. Even not explained how they were unaware of all these developments viz., exchanging the property in several hands right from 1956 till 1987. When the main relief is not for permanent injunction, but admittedly it is one for partition and possession, in my view there cannot be any temporary injunction unless it is imminent and such relief is an aid to get main relief. To arrive at this conclusion, I am supported by a decision of this Court reported in 1960 Mys. L.J page 478 which reads as follows:—
“A suit for a declaration that a decree for partition and possession against plaintiff was null and void was dismissed. Appellant filed an appeal and pending the appeal, applied for stay of execution of the earlier decree.
Held: (1) Order 41 Rule 5 CPC, was not appropriate for seeking stay of execution of a decree which is not the subject matter of appeal.
(2) In substance the application was one for a temporary injunction restraining the decree-holder from executing the decree and Order 39 Rule 2 CPC applied to a case where a party seeks an injunction in respect of a decree the validity of which is challenged, whatever ground it may be.
(3) A temporary injunction can be granted under Order 39 Rule 2 CPC only in a suit where the plaint seeks for a relief by way of permanent injunction and, as no such prayer was to be found in the present suit, an order under Order 39 Rule 2 cannot be made.
20. Further he who comes to the Court with a plea that his rights shall be protected by granting injunction, such a person shall be in actual and lawful possession and enjoyment must come to the Court well in time. In the instant case there is inordinate delay in approaching the Court for a relief of temporary injunction. Because the first sale took place in the year 1956. Subsequently took place in many hands. Finally sale culminated in the sale deed dated 29-1-1977. No explanation is forthcoming from the plaintiffs why they were unaware of these sale deeds or how they had exercised their act of possession and enjoyment of the property during this period. They were silent throughout though they were aware of the sale deeds. They were also aware of their rights. But they started: agitating the same at a later stage. Thus, delay caused in approaching the Court disentitles them to seek for a relief of injunction. As plaintiffs have not shown their prima facie possession, except producing sale deeds right from 1945 to 1987 and one encumbrance certificate, no other material to show that they were in possession and enjoyment of the property in question as on the date of filing of the suit. Further they could not have produced any material to show that they were in possession of their 2/5th share as admittedly the suit itself is one for partition and possession of 2/5th share.
Now we have to see whether balance of convenience as made out by the plaintiffs really lies in their favour or in favour of defendant-3. It is true that rights of the parties can be ascertained only after regular evidence is led in. If plaintiffs have made out an arguable case, it is just and proper to see that the status quo between the parties should be maintained. As otherwise, in the event plaintiffs succeed, they will be compelled once again to try to remove the encumbrance created or the decree obtained will be frustrated while executing. But in the instant case defendant-3 made a fair submission that if he is put on terms, he is ready to obey. According to him plaintiffs have not made out prima facie case, since he has invested huge sums, great hardship would be caused to him if he is prevented in constructing the building. According to him plaintiffs have not even made out an arguable case.
21. In my view, what the defendant submitted has to be accepted as correct. Even in a case where injury and hardship that is going to be caused is made out, an injunction can be refused, if it is shown the injury and harm that is going to be caused in case injunction is not granted can very well and adequately be compensated by awarding damages and if necessary by putting other conditions. In the instant case, the case of the plaintiff is only for 2/5th share. For the remaining 3/5th share of a site measuring 18′ × 80′ definitely they cannot have any claim. Assuming that defendant No. 3 would proceed or put others in possession and enjoyment of the same either by way of mortgage or lease, in such an event it is needless to say that law will take its own course viz., that any construction or lease or mortgage of such building or portions of it, always subject to the result of the suit or the rights of the parties as decided by the Court on merits of the case. Merely because defendant No. 3 parts with possession of the property by creating as a lessee or mortgagee in favour of 3rd person, in case plaintiff succeeds in the suit such a third person subsequently cannot say that he is not going to vacate the premises or cannot take a plea that plaintiffs were not entitled to redeem the mortgage or to seek their eviction.
22. Hence, in my view, in view of investments made, by the defendant No. 3 in the absence of any prima facie case and balance of convenience made out by the plaintiff, no harm or injury will be caused to the plaintiffs if defendant is proceeded to construct as now planned.
23. The authorities relied upon by Sri Rama Rao in support of his case which extracted above are not applicable to the case on hand as facts involved in this case are all together different to the facts involved in these cases.
For the reasons stated above, since it is said that there cannot be any injunction in respect of undefined and undecided share, I do not find any merit in any one of the contentions raised by the plaintiffs for granting injunction in their favour. Regarding their other contentions, it is not proper to give any finding at this stage since the same have to be arrived at only after regular evidence is led in. Otherwise it amounts to pre-judging the rights of the parties, which attempt, the trial Court should not have made though its attempt was honest in arriving at a conclusion that the plaintiffs not entitled for injunction.
No doubt, I have come to a conclusion that plaintiffs have not made out a case for injunction and also held that defendant No. 3 is entitled to proceed with the construction. But in order to see that interest of both the parties are safeguarded, it is proper to put defendant-3 on terms. Otherwise, in case plaintiffs succeed in the suit, tomorrow the same may cause great hardship to them. Accordingly this appeal is dismissed by imposing following conditions viz.,
(i) If 3rd defendant desires to proceed to construct and complete the building, he is at liberty to do so;
(ii) In case of construction of any building on a portion of the property which the plaintiffs have now claimed including creating any encumbrance or alienation in the form of lease or mortgage etc., is subject to result of the suit.
(iii) Defendant No. 3 in the guise of construction, till disposal of the suit shall not encumber the suit schedule property in any way either to any financial institutions or other persons;
(iv) Induction by defendant No. 3 or any 3rd person or persons on building or buildings to be constructed on the property claimed by the plaintiffs either in the form of a lessee or a mortgagee, such induction or occupation shall be at the risk of defendant-3 and the occupant;
(v) In case plaintiffs succeed in the suit, defendant No. 3 shall remove any construction or obstruction of himself or persons claiming under him on the site claimed by the plaintiffs without pleading any equity;
(vi) Constructing of building or its completion on the property claimed shall be subject to deposit of a sum of Rs. 50,000/- by defendant-3 in the trial Court within one month from this date claim to which shall be subject to the result of the suit.
It is made clear that trial Court shall proceed with enquiry on the material made available uninfluenced by the findings given by the said Court while disposing of I.As
In view of the seriousness involved in the suit, the trial Court shall dispose of the suit within six months from this date. No costs.
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