In this original petitions under Article 227 of the Constitution of India, Exts.P5 and P7 are under challenge. By Ext.P5 order, the trial court declined to grant temporary injunction as sought for by the plaintiff. The matter was carried in appeal. The lower appellate court confirmed the findings of the trial court. The facts absolutely necessary for the disposal of the petitions are as follows: 2. In Tharavad partition, thavazhi constituted under Kalyanikutty Amma and Saradhamma. 85 cents was set apart to Kalyanikutty Amma who formed 4th thavazhi and Saradhamma who formed 5th thavazhi. Though they were to take half share in the 85 cents of property, that remained undivided and the boundary shown in the deed was the common boundary of 85 cents of property. It is not in dispute that at a later point of time, according to the plaintiff, the 3rd defendant, who is the mother of the plaintiff, had constructed a house in the plaint schedule property with the consent of defendants 1 and 2.
3. The main grievance seems to be regarding the availability of road frontage for both the parties. 85 cents of property has a total road frontage of 35 meters. The grievance of the petitioners is that by the present construction attempted by the defendants 1 and 2, 20.60 meters of road frontage is utilised by the defendants 1 and 2 leaving only 14 and odd meters to the plaintiff and the contesting defendants. This, petitioners say, is inequitable and therefore, construction that is made asserting a larger portion of road frontage cannot be allowed to continue.
4. The defendants 1 and 2 are contesting defendants in the suit. According to them, there was an earlier partition when re-survey authorities were approached and they divided the properties of two thavazhies. They also have a case that it was thereafter that the building was put up by the 3rd defendant. Tharavad house which was earlier in existence happened to be demolished due to the falling of trees and it is in that place new building is being put up. The contention is that having obtained their share in the partition based on which re-survey was done and property was divided, it comes with little grace to say that there was no partition and the defendants 1 and 2 should be restrained from proceeding with the construction.
5. Learned counsel appearing for the contesting respondents in these petitions pointed out that the contesting respondents undertake that if ultimately in the partition suit now pending before the court it happens that a decree is passed by which these respondents may have to surrender a portion of the property, they are ready to do so and they may be allowed to put up construction at their risk and cost. It is made clear that on that basis no right will be claimed by them.
6. Both the courts below have considered the three constituents necessary for granting a temporary injunction. Even though both the courts have found that prima facie the case goes in favour of the plaintiff, the court also found balance of inconvenience and irreparable loss and injury go in favour of the contesting defendants namely, defendants 1 and 2. It was on that ground both the courts had declined to grant temporary injunction.
7. The main crux of case is regarding availability of road frontage. The grievance of the petitioners is that if the building is allowed to be completed, that would occupy a larger portion of the road frontage namely, to the extent of 20.60 meters leaving only 14 and odd meters for the plaintiff and the supporting defendants. This is said to be uncharitable and inequitable and therefore, they prayed for an interim relief.
8. True, both the courts were reluctant to accept the theory of earlier partition put forward by the contesting defendants. Whether that is true or not is a matter to be determined after adducing evidence and after the parties are heard at length. It is not in dispute that the 3rd defendant had put up a house presumably in her share of property. The strong objection taken now is that the contesting defendants have in fact laid a boundary and put up a fencing there. The said grievance voiced by the plaintiff and the supporting defendants is controverted by the contesting defendants who pointed out that it is not a fencing but it is a row of sheets erected to avoid inconvenience and nuisance to the inhabitants in the house in which the 3rd defendant and her children are staying. It is not the contention that line along which the temporary structure is put up is the boundary line. The suit is yet to go for trial.
9. Both the courts below found that it will be unjust and improper at this point of time to stop the construction. There was an undertaking by the learned counsel for the contesting respondents that they may be allowed to complete construction at their risk and cost and also that they will abide by any preliminary decree or final decree that may be passed by the court in the partition suit. Even assuming that a portion of the structure now being built up may have to be pulled down later, they are ready to do so at their risk and cost. It is also undertaken that no special rights or reservation will be sought for as a result of putting up of building during the pendency of the suit. The above undertaking, to a great extent, is sufficient to safeguard the interest of both the parties.
10. As rightly noticed by the courts below, it will be inequitable at this point of time to stop construction and wait for orders in the suit. If, on the other hand, contesting defendants are allowed to put up structures on the undertaking that they will abide by the decree that is intended to be passed in the suit, no particular harm is caused to the defendants. Their rights are also safeguarded. It is made clear by the contesting defendants that the temporary structures now put up are not being claimed by them as boundary separating the two properties. That should also set at rest the worry shown by the petitioners before this Court.
These petitions are disposed of recording the undertaking by the contesting respondents regarding the construction and also regarding the temporary structures that have been put up to avoid inconvenience. If the construction of the building is over, the contesting respondents shall remove the temporary structures.
smp P.BHAVADASAN JUDGE