12. Learned Sr. counsel while referring to sale-deed dated
14.11.1991, argued that in the said sale-deed, which was executed
in favour of the predecessor in title of the present
petitioners/plaintiffs, it was specifically mentioned that around the
said plot a boundary wall is constructed, which was included in
the sale. It was further argued that in the said sale-deed this fact
has also been mentioned that for the boundary wall separate
amount was paid, thus, when in the sale-deed executed in favour
of the predecessor in title of the petitioners/plaintiffs there was
already a mention of existence of a boundary wall, the contention
of the respondents/defendants that their existed no boundary wall
is base-less and as the said boundary wall due to weathering had
got damaged is in a dilapidated condition the same was required
to be repaired, but learned Trial Court as well as the appellate
Court went on a wrong assumption that the said relief would
amount to final relief which cannot be granted at an interim stage
which is wholly perverse, thus, deserves to be quashed.
13. It was lastly argued that the petitioners/plaintiffs are not
raising any new construction over the suit land rather had sought
permission to repair the wall demolished due to weathering,
which in any way could have been said to be a final relief as no
prayer in a mandatory form for raising construction of a boundary
wall was prayed in the plaint, thus, it was submitted that the
present petition deserves to be allowed and while setting aside the
impugned order directions are required to be issued to allow the
petitioners/plaintiffs to get the boundary wall
repaired/reconstructed.
14. The prayer made by the learned Sr. Counsel for the
petitioners/plaintiffs had been vehemently opposed by the counsel
for respondents/defendants no.1 and 2. While referring to the
judgments of the Apex Court in the matters of Deoraj vs. State of
Maharashtra and Ors reported in 2004 (4) SCC 697 and Samir
Narain Bhojwani vs. Aurora Properties and Investments and
Another reported in 2018 (17) SCC 203, it was argued that
granting of an interim relief that would tantamount to granting
final relief itself is impermissible and as the relief of raising
construction of the boundary wall is a final relief, the learned Trial
Court as well as the appellate Court had rightly rejected the said
prayer.
15. It was further argued while referring to the judgment of this
Court in the matter of Smt. Premabai and Ors vs. Ghanshyam
and Ors reported in 2010(4) MPHT 444, that there is a serious
dispute as to the identity of the suit land and when from the plaint
averments it is not clear that what are the boundaries of the suit
property, then for determination of the aforesaid relief as claimed
by the petitioners/plaintiffs, the Court should have appointed the
competent Commissioner directing him to examine the spot and to
give a report as to the identity of land in question and since this
has not been done, under the garb of raising construction/repairs
of the boundary wall, the petitioners/plaintiffs cannot be allowed
to enter into the lands of the defendants which they are doing,
thus, it cannot be said that any illegality or perversity has been
committed by the learned Trial Court as well as appellate Court in
rejecting the prayer of the petitioners/plaintiffs.
16. Further while referring to the judgment passed in the matter
of Shreepat vs. Rajendra Prasad and Ors reported in 2000 (6)
Supreme 389, it was argued that since there was a serious dispute
with regard to the area and boundaries of the land in question,
especially with regard to its idenity, the relief of raising
construction of the boundary wall could not have been granted as
firstly the identity of the plot was required to be established by
issuing a survey commission to locate the plot in dispute and find
out whether it forms part of Khasra as alleged or the land over
which the petitioners/plaintiffs want to raise construction fell in
the lands of the defendants.
17. Learned counsel for respondent no.3 has also argued that
since there is a serious dispute even with regard to title of
petitioners/plaintiffs over the suit property, therefore, before
ascertaining the title and the rights claimed through the sale-deed
executed in favour of the petitioners/plaintiffs granting the relief
for raising construction of the boundary wall over the suit land
would lead to multiplicity of suits/proceedings, therefore, it would
not have been granted to the petitioners/plaintiffs, thus, had
rightly been rejected by the learned Trial Court.
18. It was further argued that the relief claimed by the
petitioners/plaintiffs is hit by the principle of moulding of relief
which could at best be resorted to at the time of considering of
final relief in the main suit and not at an interlocutary stage and
the relief claimed is undeniably a mandatory relief at an
interlocutary stage. It was further argued that there is a marked
distinction between moulding of relief and granting mandatory
relief at an interlocutary stage. As regards the latter, that can be
granted only to restore the status quo and not to establish a new
set of things differing from the State which existed at the date
when the suit was instituted. Thus, it was submitted that the
present petition has no sum and substance and deserves to be
dismissed.
19. Learned counsel for respondent no.4 while extending the
arguments as advanced by the counsel for the respondent no.1 and
2 had argued that under the garb of raising construction/repairing
the boundary wall, the petitioners/plaintiffs want to extend their
foot over his land which even was agitated when a Commissioner
was directed to conduct the spot inspection in another dispute
between the present petitioners/plaintiffs and their predecessor in
title with regard to which a first appeal no.778/2019 is pending
before this Court.
20. During the course of the argument counsel for respondent
no.4 though in open Court submitted that the petitioners/plaintiffs
may raise construction over their plot, but should not be allowed
to encroach upon his land and do the construction/repair work, he
also, thus, prayed for dismissal of the present petition.
21. Heard the counsels for the parties and perused the record.
DISCUSSION AND CONCLUSION.
22. The controversy involved in the present petition is limited
to the denial of granting permission to raise construction/repair
work of the boundary wall which allegedly existed on the
plot/land in dispute. Both the Courts below had rejected the
prayer on the ground that the said relief would amount to grant of
final relief and the same can only be determined through
evidence, therefore, at an interim stage the said relief cannot be
granted.
23. In the aforesaid regard firstly if the relief made in the plaint
is analyzed, it could be seen that the suit is for declaration of title
and possession over 12000 sq.feet of land of the plaintiffs as well
as for declaring that the defendants has no right and title to
interfere with the use and possession of the plaintiffs over the suit
land and also has no right to interfere with the boundary wall
constructed over the suit land and apart from the aforesaid
declaration, permanent injunction has been sought for restraining
the defendants from interfering with the peaceful possession of
the plaintiffs by themselves or by someone else.
24. From perusal of the aforesaid relief in the plaint it could be
seen that there is no relief of raising any construction/repairing of
the boundary wall. The respondents/defendants had in one voice
submitted that there was no boundary wall existed over the plot in
dispute, therefore, there was no question of its repair. Learned
Trial Court below had gone a step further and had observed that
since there are no pleadings to the effect as to which portion of the
boundary wall was demolished due to weathering, as well as when
there is total denial on the part of the defendants of any boundary
wall over the plot nor the pleadings of the plaintiffs were
supported by any documentary evidence, therefore, it would be a
matter of evidence as to whether a boundary wall existed on the
spot or not and if such a relief is granted, then it would amount to
final relief, therefore, it could not be granted to the
petitioners/plaintiffs.
25. In that regard if the plaint averments are seen in para-1
itself it has been mentioned that there was a boundary wall
existing on the plot which on the north-eastern side had got
damaged. Also in the application under Order 39 Rule 1 and 2
CPC in para 2 and para 10 it has been specifically mentioned that
the boundary wall on northern and eastern side had got damaged
which needs repair, thus, there were specific averments in the
plaint as well as the application under Order 39 Rule 1 and 2 CPC
with regard to the boundary wall being damaged/demolished due
to weathering. In this context if the sale-deed dated 14.11.1991
and the map appended to the said sale-deed is seen (sale-deed
executed by one Aditya Grah Nirman Sahkari Sanstha Maryadit,
Gwalior in favour of Smt. Saroj Devi w/o Shri Rajendra Prasad
and Smt. Sudharami w/o Shri Brajmohan Agarwal, predecessor in
title of the present petitioners/plaintiffs) there is an averment that
the purchaser had given extra amount for the boundary wall
constructed on the plot, as well as this fact has also been
mentioned that the boundary wall constructed around the plot
would form part of the sale. Relevant extract of the sale-deed is
quoted herein below:
"उपरघोकत वरणर्गत किकषषि भभममि किघो षवकवेतया सवंसरया
किवे जररयवे मलखतमि बबकफीपत्र रजजससदी शद
श या
कमियावंकि ४९५, ग्रनर कमियावंकि ७२३९ हदन्नयावंकि ०७-०५-
१९९१ किवे दवयारया शस अशघोकिकिशमियार, रयाजकिशमियार
पशत्ररण अमिरमसवंह जस तरया सशरवेशकिशमियार पशत्र
मभककिभलयाल व सशभयाषिचनद पशत्र मिसतरयामि
तन्नवयाससरण मिशरयार आहद सवे प्रततफल १,२५०००)
रूपयवे मिम खरदीद किफी रस। और जजसमिम षवकवेतया
दवयारया उन्नकिघो बयाउनडसवयाल किफी धिन्नरयामश अलर सवे
अदया किफी रई रस।
अत: उपरघोकत वरणर्गत किकषषि भमभ मि जजसकिफी चतश:
ससमिया तन्नमन्नहहै। किघो इस मलखतमि दवयारया कवेतयारण
किघो बबकफी किफी हहै जघो सड़कि न्नरर तन्नरमि सवे लरस
हशई हहै।
परभ ब मिम :- सड़कि किचचस व पककिफी न्नरर पयामलकिया
तन्नरमि ऐ 0 बस0 रघोण्ड रयायरू किघो व गवयामलयर मसटदी
किघो,
पजशचमि मिम :- किकषषि भमभ मि षवकवेतया,
उततर मिम:- किकषषि भभममि ददीरर,
दककण मिम:- किकषषि भमभ मि षवकवेतया किफी हहै।
उपरघोकत वरणर्गत किकषषि भभममि किया मियान्नधचत्र सवंलगन्न
हहै तरया भभममि मियान्नधचत्र मिम लयाल रवेखया किवे अनदर
बतयाई हहै, बबकफीत भभममि किवे चयाररों तरफ बयाउनडस
वयाल तन्नममिर्गत हहै जघो बबकफी मिम शयाममिल हहै।"
26. From bare perusal of the aforesaid pleadings in the sale-
deed prima facie it could be inferred that there existed a boundary
wall over the plot. Thus, when the factum of existence of the
boundary wall as well as the damage cause to the said boundary
wall on the northern and eastern side of the plot was prima facie
pleaded and were supported by documentary evidence and were
available before the Courts below, it was, thus, not correct to
observe that there was no material available to demonstrate the
existence of the boundary wall as well the side which had got
damaged, thus, to this extent the findings are perverse.
27. So far as the grant of final relief at an interim stage is
concerned, though this Court finds that the relief which was
sought at an interim stage was not at all covered under the final
relief, thus, would not amount to grant of final relief at an interim
stage, but even if a converse situation is analyzed, then the extract
of judgment cited by learned counsel for the respondents no.1 and
2 in the matter of Deoraj (supra) can be taken resort of. In para 12
the Apex Court has observed as under:-
"12.Situations emerge where the granting of an
interim relief would tantamount to granting the
final relief itself. And then there may be converse
cases where withholding of an interim relief
would tantamount to dismissal of main petition
itself; for, by the time the main matter comes up
for hearing there would be nothing left to be
allowed as relief to the petitioner though all the
findings may be in his favour. In such cases the
availability of a very strong prima facie case ___
of a standard much higher than just prima facie
case, the considerations of balance of
convenience and irreparable injury forcefully
tilting the balance of case totally in favour of the
applicant may persuade the Court to grant an
interim relief though it amounts to granting the
final relief itself. Of course, such would be rare
and exceptional cases. The Court would grant
such an interim relief only if satisfied that
withholding of it would prick the conscience of
the Court and do violence to the sense of justice,
resulting in injustice being perpetuated
throughout the hearing, and at the end the Court
would not be able to vindicate the cause of
justice. Obviously such would be rare cases
accompanied by compelling circumstances, where
the injury complained of is immediate and
pressing and would cause extreme hardship. The
conduct of the parties shall also have to be seen
and the Court may put the parties on such terms
as may be prudent."
28. The Apex Court had observed that the Court could grant an
interlocutary mandatory injunction if they are satisfied that
witholding of it would prick the conscience of the Court and do
violence to the sense of justice, resulting in injustice being
perpetuated throughout the hearing, and at the end the Court
would not be able to vindicate the cause of justice, but such
exercise of granting relief would be in rare case accompanied by
compelling circumstances, where the injury complained of is
immediate and pressing and would cause extreme hardship.
29. Reference can also be had to the judgment cited by
respondents no.1 and 2 in the matter of Samir Narain Bhojwani
(supra). In para 24 it has held as under:-
"24.That apart, the learned Single Judge as well
as the Division Bench have committed
fundamental error in applying the principle of
moulding of relief which could at best be resorted
to at the time of consideration of final relief in the
main suit and not at an interlocutory stage. The
nature of order passed against the appellant is
undeniably a mandatory order at an interlocutory
stage. There is marked distinction between
moulding of relief and granting mandatory relief
at an interlocutory stage. As regards the latter,
that can be granted only to restore the status quo
and not to establish a new set of things differing
from the state which existed at the date when the
suit was instituted. This Court in Dorab Cawasji
Warden Versus Coomi Sorab Warden and Others,
has had occasion to consider the circumstances
warranting grant of interlocutory mandatory
injunction. In paragraphs 16 & 17, after
analysing the legal precedents on the point as
noticed in paragraphs 11-15, the Court went on to
observe as follows:
"16. The relief of interlocutory
mandatory injunctions are thus
granted generally to preserve or
restore the status quo of the last non-
contested status which preceded the
pending controversy until the final
hearing when full relief may be
granted or to compel the undoing of
those acts that have been illegally
done or the restoration of that which
was wrongfully taken from the party
complaining. But since the granting of
such an injunction to a party who fails
or would fail to establish his right at
the trial may cause great injustice or
irreparable harm to the party against
whom it was granted or alternatively
not granting of it to a party who
succeeds or would succeed may
equally cause great injustice or
irreparable harm, courts have evolved
certain guidelines. Generally stated
these guidelines are:
(1) The plaintiff has a strong case for
trial. That is, it shall be of a higher
standard than a prima facie case that is
normally required for a prohibitory
injunction.
(2) It is necessary to prevent
irreparable or serious injury which
normally cannot be compensated in
terms of money.
(3) The balance of convenience is in
favour of the one seeking such relief.
17. Being essentially an equitable relief the grant
or refusal of an interlocutory mandatory
injunction shall ultimately rest in the sound
judicial discretion of the court to be exercised in
the light of the facts and circumstances in each
case. Though the above guidelines are neither
exhaustive nor complete or absolute rules, and
there may be exceptional circumstances needing
action, applying them as prerequisite for the grant
or refusal of such injunctions would be a sound
exercise of a judicial discretion." (emphasis
supplied)"
30. In the aforesaid judgment the Apex Court while referring to
the judgment of Dorab Cawasji Warden vs. Coomi Sorab
Warden reported in 1990 (2) SCC 117, wherein it was held that
the relief of interlocutary mandatory injunctions can be granted
generally to preserve or restore the status quo of the last non-
contested status which preceded the pending controversy until the
final hearing when full relief may be granted or to compel the
undoing of those acts that have been illegally done or the
restoration of that which was wrongfully taken from the party
complaining, thus, has held that being essentially an equitable
relief the grant or refusal of an interlocutary mandatory injunction
shall ultimately rest in the sound judicial discretion of the Court to
be exercised in the light of the facts and circumstances in each
case.
31. In the light of the aforesaid enunciations, this Court finds
that the learned Trial Court as well as the appellate Court though
had found a prima facie case and balance of convenience in
favour of the petitioners/plaintifs and had held that if injunction
restraining the defendants from interfering with the peaceful
possession of the petitioners/plaintiffs is not granted to them
irreparable loss would be caused, which goes to show that the
identity of the land in question was prima facie found had rejected
the prayer to protect the possession over the plot by repairing the
existed boundary wall appears to be not proper. The Courts below
should have granted permission to repair the boundary wall
making it subject to the final outcome of the suit and that would
not have amounted to grant of final relief as by raising the
boundary wall over the plot in question would not decide the right
and title and would not even lead to multiplicity of proceedings.
32. Thus, this Court holds that the findings of both the Courts
to this extent is not correct. Accordingly, the petition is hereby
allowed, the petitioners are allowed to repair the boundary wall on
the northern and eastern side of the plot in dispute, which shall be
subject to final outcome of the suit.
33. With the aforesaid direction, the petition is hereby allowed
and disposed of.
(Milind Ramesh Phadke)
Judge
chandni/ 29/01/2025
CHANDNI
NARWARIYA
2025.01.29
17:40:22
+05'30'
