APPEAL AGAINST ORDER NO. 103 OF 2014

13th December 2019

Petitioner Counsel: Shri Salim Khan
Respondent Counsel: Shri S.R. Gupta
Act Name: Specific Relief Act, 1963 Code of Civil Procedure, 1908 Transfer of Property Act, 1882

Section :
Section 36 Specific Relief Act, 1963 Section 37 Specific Relief Act, 1963 Section 38 Specific Relief Act, 1963 Section 39 Specific Relief Act, 1963 Section 52 Transfer of Property Act, 1882

Cases Cited :
Para 24: Devdutt Chandrakant Patil Vs. M/s Mahalkar Developers, reported in 2011(6) Mh.LJ 322
Para 24: Nandalal Vs. Sanjeev Kumar, reported in (2012) 4 CivCC 667
Para 24: Harish Bulchand Tejwani Vs. Nandlal Hakikatrai Motwani, reported in 2016 (I) All MR 127
Para 24: Maharwal Khewaji Trust (Regd). Faridkot Vs. Baldev Dass, reported 2004 (8) SCC 488

JUDGEMENT

This is one more instance wherein Court is required to decide dispute in between two adjoining owners of the land. One is saying that other has encroached upon his land. As there dispute had reached to such an extent that one litigant was left with no other alternative than to approach Civil Court. Their inter­say dispute has become more complex because both are not the original owners of their respective land but they have purchased it from different vendors vide respective registered sale­deeds.

2. On this background aggrieved person had come up with a suit for possession by removal of encroachment with a further prayer of permanent injunction not to create third party interest in respect of a land owned by the aggrieved person which is under encroachment.

3. As the aggrieved person has apprehended of a pending suit alienation over the encroached portion, there was a need for temporary injunction application. The wrong doers were not dithered due to the act of taking recourse to law by the aggrieved person and they have dared to carry out the construction of a compound wall on encroached land.

4. This is the background of Special Civil Suit No. 420 of 2013 filed before the Court of 7th Joint Civil Judge Senior Division, Nagpur filed by present appellants against present respondents. There are two pieces of land bearing Kh.No.55/1 and Kh.No. 55/2, P.H. No.17, Mouza Wanjara Teh & Dist. Nagpur. Area admeasuring 0.89 HR out of this Kh.No.55/1 is the suit land on which appellants claimed encroachment. They are the owners. Whereas Kh.No.55/2 is the land situated on northern side of Kh.No.55/1.

5. Kh.No.55/2 is owned by respondent nos.1 to 13. Both the sets of litigant have purchased the respective lands from different owners.

6. The cause of action for filing the suit is of 11th June, 2013. Respondent nos. 1 to 13 have decided to develop their land i.e Kh.No.55/2, respondent no.14 is their power of attorney holder. He is a proprietor of Shri Sai Developers. He has prepared a lay out and invited prospective purchasers to purchase the plots. Appellants contended that the encroached area admeasuring 0.89 H.R. which forms part of Khasara no. 55/1 was included in that layout. This act compelled the appellants to file a suit for the reliefs mentioned above.

7. The respondent nos.1 to 4 objected for grant of reliefs on multifold grounds. It is opposed on the ground of hiding of facts, not filing of suit against their vendors & against Ganesh Builders (purchasers from the vendors), on account of outcome of measurement of Khasara no. 55/2 (carried out on 25th March, 2004 & on 22nd October, 2012). It is opposed on the ground that so called map prepared by Ashfaque Engineer has no sanctity.

8. On the other hand the respondents have pleaded to have every right to sell, develop land bearing Khasara No.55/2. It is true that (though these respondents have denied the allegation of usurping 0.89 HR of land) they have not come out with specific plea about the manner in which they propose to use land bearing Khasara no. 55/2.

9. The trial Court decided (a) initial temporary injunction application and (b) later on filed interim injunction application vide common order dated 23rd July, 2014. The case put forth by the appellants does not appeal to the conscious of the trial Court. It resulted into rejection of those applications.

10. The appellants were not satisfied with the said verdict and accordingly they are before this Court. Both the learned advocates assisted me in understanding the findings given by the trial Court. Mainly the reliefs were rejected on following grounds.
(a) Map drawn by private architect cannot be relied upon because survey was carried out without issuing notice to respondents.
(b) Ashpaq, Engineer is not having any authority from Government just like City Survey Officer.
(c) There is no authenticate document to show the encroachment of 0.86 H.R is on Kh.No.55/1.
(d) It will cause more hardship to respondents if the injunction is granted.
(e) Contention of the parties can be decided only by way of oral and documentary evidence.
(f) No prima­facie case is shown by the appellants.

INTERIM RELIEF SOUGHT BY THE APPELLANTS.

11. Appellants have sought following two kinds of interim prohibitory injunction.
(i) Not to create third party interest in respect of encroached area till disposal of the suit.
(ii) Not to carry out illegal construction on 10,000 square feet land on the encroached portion.
Whereas there is one interim mandatory injunction sought. It is for removal of compound wall constructed on 100 ft x 100 ft of land out of 0.86 HR land.

PROVISIONS OF LAW

12. Order 39 of the Code of Civil Procedure deals with grant of interim injunction whereas Sections 36, 37, 38 of the Specific Relief Act deals with grant of prohibitory injunction and Section 39 deals with mandatory injunction. It is settled law that mandatory injunction at an interim stage is rare and in exceptional circumstance only.

PROVISIONS OF SPECIFIC RELIEF ACT.

13. Section 37 of the said Act lays down how relief of temporary and permanent injunction are regulated. Section 38 lays down the guidelines for grant of permanent injunction. The principles which emerges on conjoint reading of all sub­sections of Section 38 are as follows :­

PRINCIPLES FOR GRANT OF PERMANENT INJUNCTION

a) It can be granted to prevent breach of express / implied obligation in favour of plaintiff.
b) If obligation is based on contract different parameters are there. In case before us, there is no prayer for specific performance as there is no contract between the appellants and the respondents.
c) If plaintiff has got right to property or enjoyment of property and defendant is invading it, following guidelines before grant of injunction are there.
i) damage due to invasion cannot be ascertained in terms of money.
ii) compensation in terms of money is no adequate relief.
iii) prevention of multiplicity of proceeding. (relevant portion is only reproduced)
The above reproduced principles also guides the Court while dealing with interim prohibitory injunction. Section 37(1) says that interim injunction is regulated by the provisions of Code of Civil Procedure.

PROVISIONS OF ORDER 39 OF CODE OF CIVIL PROCEDURE.

14. Under either of the three contingencies (independent of each other) temporary injunction can be granted. If there is alienation of the suit property pending the suit, the appellants will not get the fruits of the decree during execution if the suit is decreed in future. That is why the appellants want the respondents not to alienate the suit property pending suit. If pending suit, any constructions are carried out on the suit property there is possibility of causing damage. Hence, the appellant’s prayer falls under clause (a) of Order 39 of Code of Civil Procedure.

15. So while deciding interim prohibitory injunction application, Court has to balance rights of the litigating parties. The right of appellants to protect the suit property on one hand and right of the respondent to use the suit property freely without any restraint order needs to be balanced. The Courts have settled this issue since long. While undertaking this exercise the Court is guided by three basic principles. They are as follows :­
a) Existence of prima­facie case,
b) Tilting of balance of convenience.
c) irreparable loss.

16. So the Court has to satisfy itself about existence of above three principles in favour of the appellants. Court will have to visualize the position at two stages. One is at the stage of deciding the application and second is at the time of final out come of the suit. If there is merit in the grievance of appellants, then only the Court will be justified in exercising the discretion in favour of relief seeker and that can only be done for the purpose of preservation of the property.

MANDATORY INJUNCTION

17. It anticipates existence of obligation and likelihood of its breach. So with the object of prevention of its breach, Court may direct the wrong doer to do particular act. This is what is contemplated by the provisions of Section 39 of the said Act.

APPROACH OF THE TRIAL COURT

18. Trial Court refused to grant any kind of injunction sought by the appellants. I fully agree with the said conclusion. I will give my reasons hereinafter. But I do not subscribe with the process adopted by the trial Court for coming to the said conclusion. The thrust of learned trial Judge while coming to the said conclusion was on following factors.
a) Map drawn by Ashfaque Engineer was without notice to the respondents,
b) he is not government approved surveyor,
c) absence of documents to show prima­facie case,
d) issues can be adjudicated after evidence,
e) there will be irreparable loss to the respondents only,

MATERIALS CONSIDERED

19. The learned trial Judge pointed out defects in the map drawn by Ashfaque Engineer and rightly so. Apart from it, trial Court referred sale deeds on which both litigating parties founded their claim. But are these only documents relied upon by the parties? The answer is no. Appellants relied upon their appeal preferred to District Inspector of Land Record in the year 2013. It is against the 2004 measurement. Appellants relied upon layout prepared by respondent no.14 Shri Sai Developers (on behalf of respondent no.1 to 13). These documents were neither referred nor discussed.

20. There are also documents relied upon by the respondents but not referred by the trial Court. It includes suit filed by M/s Shri Ganesh Builders against the legal representatives of Kisan Bhende i.e Ramdas Kisan Bhende and others (who sold away land to M/s Shri Ganesh Builders). Respondents relied upon 2012 measurement and its result.

21. You cannot over look a document under the pretext that even if it is referred, it will not further the case of the appellant. You have to refer it and then to give your opinion on it. So also you cannot over look them just because if referred it will take further the case of a litigant who is already going to be the winner. I have chosen to opine on this subject because now a days tendency to “decide the disputed issue only on considering few documents/instances” is noticed. This amounts to avoiding to perform the responsibilities bestowed on a Judge by law.

22. So I thought it essential to look into those non referred documents by the trial Court (which were referred during arguments).

APPROACH OF APPELLATE COURT

23. The conclusion drawn by the trial Court should not be interfered just because view different from the view taken by the trial Court is possible. Law is settled by judicial pronouncements. Following are few instances which warrant interference.
a) not considering the material which is relevant and even such material which takes further the case of plaintiff.
b) considering the material which is irrelevant.
On this background, it is my duty to decide the issues with the help of pleadings and documents.

JUDICIAL PRECEDENTS

24. The appellants relied upon few judicial interpretations. I have perused them.
i. When the stage for payment for the flat has not ripe up and still the builder defendant was about to create third party interest on the pretext that there is a failure on the part of plaintiff/flat purchaser, Court was justified in granting temporary injunction. These are the facts in case of Devdutt Chandrakant Patil Vs. M/s Mahalkar Developers reported in 2011(6) Mh.LJ 322.
ii. The defendant vendor fails to execute a sale­deed, plaintiff purchaser approached the Court. Court was not pleased to restrain the defendant owner from creating third party interest but Court was pleased to direct defendants to maintain status quo. He failed to appear in the appeal. These are the facts in case of Nandalal Vs. Sanjeev Kumar reported in (2012) 4 CivCC 667.
iii. Court is not to be influenced by the protection available under Section 52 of Transfer of Property Act when three parameters for grant of interim injunction are made out. These are the facts in case of Harish Bulchand Tejwani Vs. Nandlal Hakikatrai Motwani reported in 2016 (I) All MR 127.
iv. In possession suit, trial Court restrained defendant from alienating the suit property and from making construction therein. It was set aside by the first appellate Court with the observation that lis pendence protection will be available. The order was confirmed by the High Court. Hon'ble Apex Court was pleased to grant injunction. The defendant was put with a responsibility to show extra­ordinary ground for carrying out construction and for alienation. The defendant failed. The option to claim damages if appellants fail ultimately was kept open. These are the facts in case of Maharwal Khewaji Trust (Regd). Faridkot Vs. Baldev Dass reported 2004 (8) SCC 488.

25. The above observations are mainly on the basis of facts of those cases. If I will found that benefit of those observations can be given to the appellants. I will certainly extend it to the appellants.

CONSIDERATION

26. The interim injunction application is to be decided on the basis of averments on affidavit and documents. Even though certain facts are disputed, still one can presume them considering the scope of inquiry. In the present controversy, there are certain facts which need to be presumed. Both the litigating parties relied upon documents, which are classified in following categories for easy understanding.

Documents
a) documents of title,
b) revenue record,
c) previous litigation,
d) documents of measurement and map (private and government),

DOCUMENTS OF TITLE.

27. Both the litigating parties are not the original owners but they are the purchasers from two branches of Bhende family. One branch is represented by legal representatives of Kisan Badhuji Bende. Another branch is represented by legal representatives of Rambhau Badhuji Bende. The sale deed relied upon by litigating parties are as follows :­

Vendors Purchaser Sale­deed Property
Gopinath
Kisan Bhende
& Others
Appellant
plaintiff no.1
to 8.
Registered on
18.12.2010
Khasara No.
55/1 Area
2.27 HR

The respondents relied upon following sale­deed.

Vendors Purchaser Sale­deed Property
Laxmibai
Rambhan
Bhende
Respondent /
defendant
no.1 to 13
Registered on
29th October,
2010
Khasara No.
55/2, Area
2.27 HR

28. Both the above referred sale­deeds are registered documents. There is a dispute about who is in possession of exact area of land purchased. It is a subject matter of adjudication. But the registered documents have presumptive value. Atleast at an interim stage, we can certainly presume their existence. Hence both the appellants on one hand and respondent no.1 to 13 on the other hand are certainly the owners of Khasara No. 55/1 and 55/2 (not over exact area) respectively.

REVENUE RECORD.

29. Earlier Khasara no.55 was unbifurcated. For deciding the interim prayers it will be necessary to consider the back ground for bifurcation of Khasara no.55. The appellants have filed on record one order dated (date not legible but filed at page 122 of paper book) passed by Tahsildar, Nagpur. He has given following directions:­
a) Khasara No.55 Area 4.54 H.R. be partitioned as Eastern Portion & Western Portion.
b) Smt. Laxmibai Rambhau & Others (respondents/vendors) be allotted – Eastern portion.
c) Smt. Gopikabai Kisan Bhende & others (vendors of appellants) be allotted Western Portion.
d) Each branch will be getting 2.27 HR out of 4.54 HR (total area).
e) This portion was done on the basis of partition and measurement report dated 13/02/2004 of city survey office.
f) This partition was done as per the orders of Hon’ble High Court and 7th Joint Civil Judge, Junior Division.

30. The appellants claim title from the respective vendors. The partition and shares were determined by the civil court. There is a dispute raised by the appellants about measurement by city survey office done in the year 2004. But at an interim stage we can certainly presume about partition by Tahsildar on the basis of measurement by city survey office. I will comment on the dispute raised by the appellants in later part of my order.

PREVIOUS LITIGATION

31. There is a reference in two kinds of litigation
(a) One is in between the family of Bhende. Between the branch headed by Rambhau Bhende (who are the plaintiffs) against the branch headed by Kisan Bhende (who are the defendants). It is a partition suit.
(b) Second is Special Civil Suit No. 952/2005 filed by Shri Ganesh Builders against Gopikabai Kisan Bhende (branch of vendors of appellants). This is not referred by the appellants but on behalf of respondents for objecting to the maintainability of the present suit. This suit is dismissed on 13th September, 2012 for want of taking steps by the plaintiff (the order is on page no. 121 of paper book).

32. The dispute between two brothers i.e Rambhau & Kisan was pending over the land since 1976. Rambhau Bhende filed RCS No. 571 of 1979 for partition. Finally, he got success in second appeal no. 31/1990. The decree says:­
a) Plaintiff is entitled to half share.
b) Defendants were directed to hand over possession.
c) Partition be effected through Collector.

33. The decree was put to execution and as said above Tahsildar ordered for partition by metes and bounds. Uptill this stage there was no boundary dispute (as not pleaded by the litigating parties). Even the legal representatives of both the branches have sold their respective shares vide registered saledeeds in the year 2010. Dispute arose later on in between the purchasers.

34. Prior to partition by metes and bounds in the year 2004, Kisan Bhende (during his life time) decided to sell undivided land bearing Khasara No.55 to M/s Ganesh Builders as per Memorandum of Understanding dated 30th April, 2004 and accepted part consideration (these facts are pleaded by respondents and not by the appellants). The legal representatives of said Kisan refused to perform the promises and this led to filing of Special Civil Suit no. 952/2005.

35. Respondents objected to the maintainability of suit on the ground of non joinder. The appellants have not joined legal representatives of said Kisan (who are their vendors) in the present suit.

ENCROACHMENT GRIEVANCE.

36. There can be encroachment on open land, land used for agriculture, land in urban area, in the open area of a structure. The kind of evidence available to prove encroachment depends upon kind of encroachment and whether it is on land or structure. If there are no boundary marks demarcating the lands, it will be more difficult to decide about encroachment.

37. The evidence to prove encroachment can be in the form of photographs, affidavits, maps drawn after measurement of land. The authenticity of map also depends whether the survey is done by private person or by government representative. It also depends upon what kind of procedure is followed.

EVIDENCE IN THIS CASE

38. It is in the kind of
a) Pleadings,
b) Map,
c) Earlier survey & maps,
e) Photographs.
For deciding this issue, there are two angles. One is the basis on which there is apprehension in the mind of appellants to seek two interim reliefs and second is the material for forming the apprehension and the material supporting grant of those reliefs.

MATERIAL FOR CREATING APPREHENSION

EXHIBIT ­ 5

39. Respondent nos. 1 to 13 executed power of attorney in favour of respondent no.14 on 13th March, 2013 for the purpose of doing necessary acts in respect of sell of Khasara no. 55/2 and the connected acts. It is the grievance of the appellants that respondent no.14 has prepared a layout for a land admeasuring 5.50 acres of land whereas the power of attorney authorises same only for any area admeasuring 3.75 acres of land. In that sense of the matter, it is the further grievance that 0.86 hectors of land is included in the layout and it is nothing but the land of the appellants. The respondents are selling the plots from that layout. All these acts caused apprehension.

EXHIBIT – 105

40. Initially, the appellants only sought an injunction not to create third party interest in respect of 0.86 hectors of land (Exh.5). Later on, appellants moved fresh application thereby asking interim prohibitory injunction from carrying out illegal constructions on 10000 sq.ft. of land forming part of 0.86 hectors of land and interim mandatory injunction asking removal of illegal compound wall surrounding that 10000 sq. ft of land (Exh.105). Initially, trial Court granted status quo order on 4th July, 2013 and inspite of that on 10th December, 2013 the respondents started construction as mentioned above and hence Exhibit No. 105 was filed.

41. THE RESPONDENTS VERSION They have denied creation of third party interest and carrying out any construction either on 0.86 hectors of land or on 10000 sq. ft. of land out of that larger area. Any different reply to exhibit Nos. 5 and 105 was not filed on record either by appellants or by respondents and hence the respondents version is understood from the averments in the written statement. The appellants have filed on record certain photographs at page nos. 153 to 155 in this appeal showing construction alleged to be made by these respondents. Except denial respondents have not pleaded about their constructions on any of the part of land forming Khasara No. 55/2. So also, there are broucher, layout for Khasara No. 55/2 in the name of Shree Sai Developers (respondent no.14) filed on record. It is not clear from the written statement about any preparation of layout by these respondents and sell of any of the plot forming that layout from Khasara No. 55/2.

42. On the other hand the respondents have restricted themselves in pointing out earlier agreement to sale of Khasara No.55/1 by Gopikabai Rambhau Bhende and others with M/s Ganesh Builders. They have restricted themselves in pleading about issuing possession letter (in respect of plot no.6 admeasuring 1500 sq. ft. from Khasara no. 55/1) in favour of one Ubed Ahmed Sayyad Ansari and cancellation of the transaction depicted in that possession letter.

MATERIAL SUPPORTING GRANT OF THOSE RELIEFS 2004 MEASUREMENT

43. One of the material is maps prepared on different occasions. Both have relied on such maps. The foundation is the map prepared by City Survey Officer on 25th March, 2004 at the time of partition. At that time Khasara No. 55 was unbirfurcated. Though the parties to that partition have not challenged the outcome of that partition, the appellants in the year 2013 have challenged it by way of an appeal. The outcome of the appeal is not known.

44. When the appeal memo filed by the appellants is perused, the sum and substance of the grievance is –

Out of Khasara no. 55/1,

the appellants are in
possession of land
Admeasuring 1.34 HR whereas
remaining 0.93 HR is
possessed
by respondents.

The appellants on 29th October, 2012 become aware of this fact when they obtained copy of the map of measurement that took place on 25th February, 2004. That is why, they have prayed for re-measurement of entire Khasara No. 55 and then to correct the demarcation line.

45. Admittedly, as on today there is no decision of the appeal in favour of the appellants. So, the allegations made have remained the allegations only and they could not be substantiated by the appellants.

2013 & 2012 MEASUREMENT

46. The appellants as well as respondents independently approached City Surveyor for measurement / demarcating Khasara No. 55/1 and Khasara No. 55/2. The appellants did it in the year 2013 and the respondents did it in the year 2012. On both the occasions the City Survey Officers opined that there is a variance in area of the land. The appellants pleaded about this fact but he has not produced any document. Whereas the respondents produced the map. They contend that the outcome of 2004 and 2012 measurement is the same. The commonness is the outcome could not be achieved for some reason or other. But fact remains that both have attempted to get measured the respective lands but they could not be successful.

PRIVATE MAP

47. The only other piece of evidence relied upon by the appellants is the private map drawn by Ashfaque Engineer. He claims to have measured both Khasara No. 55/1 and Khasara No. 55/2. The outcome of the said measurement is as follows :­

Area possessed by
appellants (Khasara
No.55/1)
­ 1.41 HR
Area possessed by
respondents ( Khasara No.
55/2)
­ 3.13 HR
Additional area shown
(Khasara No.55/1)
­ 0.86 HR

48. The trial Court has discarded this map and rightly so. Ashfaque Engineer is the surveyor appointed by the appellants privately. Admittedly, he has not issued any notices prior to survey to the respondents. As such, he has no authority to measure Khasara No. 55/2. I agree to the reasoning given by the trial Court.

49. Learned advocate Shri Salim Khan invited my attention to two observations by the learned trial Judge at two places. In para no.4 of the order, learned trial Judge observed “the copy of measurement map dated 4th April, 2013 is filed on record”. Whereas on running page no.42, learned trial Judge observed “further more it is important to note that there is no other positive or authenticate document on record to show that the defendants have made alleged encroachment 0.86 HR over Khasara no. 55/1.” According to learned advocate Shri Salim Khan, these two observations are inconsistent and it shows non­application of the mind.

50. I do not agree to the said submission. Learned trial Judge wants to suggest that there is no such document which shows encroachment of 0.86 HR on Khasara No.55/1. It is one thing to say that there is a measurement plan available and it is different thing to say that there is no document to support appellants' contention. Trial Court wants to suggest that even the said map does not support the grievance of the encroachment made by the appellants. I do not find inconsistency.

51. It is but natural that a person (who has purchased a land having a particular measurement) is interested to get the exact area which is purchased by him. Some time prior to finalising the sale-transaction, land intended to be purchased is measured. This has not happened in this case. However, if you measures a land subsequently then you will have to wait for its outcome. And particularly when you have appealed to higher survey officers about the previous measurement. During the pendency of that appeal you cannot take a short cut by measuring the land privately and to ask for interim relief.

PHOTOGRAPHS

52. The photographs filed by the appellants can only show some construction is going on. It is insufficient to accept at an interim stage that the said construction is being carried out on that portion of land which falls within Khasara No. 55/1. If there could have been primary materials supporting the grievance of the appellants, then this corroborative material (of photographs) could have been considered. However, primary material is not there.

SUBSEQUENT EVENT

53. After the decision on 23rd July, 2014 the appellants applied before trial Court for appointment of Court Commissioner for assessing the encroachment. The request was made by invoking the provisions of Order 26 Rule 9 of the Code of Civil Procedure. It was accepted by the trial Court on 5th March, 2015. The trial Court gave following direction ­
“DSLR is appointed to demarcate the boundaries of Khasara No. 55/1”

54. City Survey Officer No.2, Nagpur measured the land Khasara No.55/1 on 26th November, 2015 and reported to the trial Court as follows :­

There is a colony
(Vasahat) on area
­ 1.91 HR
There is a road on ­ 0.34 HR
Total ­ 2.27 HR

55. Respondents supports this outcome whereas appellants disagree with it. They have filed a pursis to that effect in this appeal. This survey outcome was not available when the impugned order came to be passed. The Appellate Court can certainly look into the material which had come into existence during the pendency of appeal.

56. No doubt this measurement outcome does not support the appellants contention about the encroachment on Khasara No. 55/1. Admittedly, this survey is carried out by the Government Officials. By keeping open the grievances about the said outcome on behalf of the appellants, I do not find any wrong in considering the said outcome at an interim stage.

CONCLUSION

57. So at this stage I do not find any reason to interfere in the conclusion drawn by the trial Court. The appellants could not satisfy this Court about prima­facie case in their favour. The issue of balance of convenience could have been answered in favour of the appellants, if they could have shown prima­facie case. Hence, the issue of irreparable loss has also to be answered against the appellants. Hence, I find no merit in the appeal.

58. However, this does not prevent the Court from making certain observations. The appellants will have to pursue their case before the trial Court. They have already made it clear about non-acceptance to the outcome of the measurement arrived at by the City Surveyor – Court Commissioner. The appellants are at liberty to press before the trial Court the outcome of their appeal pending before the Dy. Director of Land Records. It is true that on merits, this Court has not accepted the grievances of the appellants. However, this does not prevent the Court from making certain observations about the future activities, if any, to be carried out/undertaken on behalf of the respondents. This pertains only to 0.89 HR of alleged encroachment of land, alleged to be forming the part of Khasra No.55/1 (forming Khasra No.55/2 as per the respondents). This Court is aware of the protection given to the parties to the litigation by Section 52 of the Transfer of Property Act. Any transfer pending litigation in respect of the property involved in the litigation (without permission of the Court) is unlawful (when declared by the Court). This Court is aware that the said prohibition restricts only to property involved in the litigation. In this case, the encroached area of 0.89 HR of land falls within the limits of Khasra No.55/1 or Khasra No.55/2 is under dispute.

59. At this Stage this Court has not accepted that it falls in Khasra No.55/1. But, at the final outcome of the suit, the trial Court may (on the basis of evidence) accept the grievances of the appellants and may give a verdict in their favour. In such an eventuality the activities/transfers that will be carried out during pendency of suit will be affected by the final outcome of the suit. So, this Court feels it proper to caution the respondents. This Court directs the respondents to bring it to the notice of prospective purchasers/ transferees acquiring interest in any manner that the land to be purchased or acquired in any manner forms a part of disputed area of 0.89 HR of land. This caution is also applicable to any construction activity that will be carried out on that 0.89 HR of land.

60. There will be a confusion which will be 0.89 HR of land. It needs to be clarified. We have got four maps. One is private map prepared by Ashfaque Engineer. Second is 2004 plan and third is plan prepared by Taluka Inspector Land Record / Court Commissioner filed as per request letter dated 3rd March, 2016. Last one is proposed plan of layout prepared by Shri Sai Developers respondent no.14 ( filed at page nos. 149, 150, 151 of private paper book). On Western side 30 feet wide road is shown. Whereas private plan in between Khasra No. 55/1 and 55/2 encroachment by respondents is shown.

61. At the same time in map prepared by Court Commissioner, road is shown in between two Khasra numbers. Dispute only pertains to land touching each other from these Khasra Number. Now, whether it is a road / encroachment will be decided by the trial Court. So this Court thinks that direction must relate to that portion of land from Khasra no. 55/2 which is falling on Eastern side of the road (Court Commissioner map is considered). So the direction will apply to plots which are on Eastern side of road.

62. This direction will be applicable to the activities carried out from today onwards. With these directions the following order is passed.

ORDER

i) Appeal is dismissed
ii) Parties to bear their own costs.