Schedule-B land described in the plaint of TS No. 373/2017. In the said context, this Court is of the considered opinion that the said affidavit binds no one save and except the appellant No.2. It cannot bind any other person who is not sworn the said affidavit. Hence, the said affidavit, by which undertaking has been given before this Court by the appellant No.2 cannot be used as a tool for allowing construction to be made on Schedule-C land jointly by the appellants and the respondents No.3 to 9. The appellant No.1, being a builder, would create third party right over the constructed area and there is every likelihood that a third party would only know his agreement with the builder and/or the sale and/or lease deed, the sanctioned plan and the NOC for construction. But, the sanctioned plan and the NOC do not recognize the right of the respondents No.1 and 2 over their purported claim of a 6 (six) feet wide common passage and 2 (two) feet wide drain. Under the aforesaid factual background, the submissions made by the learned Senior Counsel for the respondent No. 8 to the effect that as the appellant No. 2 by his affidavit submitted before this Court on 30.08.2018, undertaking not to make any construction on the six feet passage and two feet drain appears to be very attractive, but it must be borne in mind that in the present case, the approved plan and the NOC for construction by the GMC was issued in the names of appellant No.2 and respondents No. 3, 4, 7, 8 and 9 in their individual capacity and, as such, there is no material before this Court to show that undertaking by the appellant No. 2 would bind the others including the respondent No. 4 (minor). Hence, the affidavit/ undertaking before this Court by the appellant No. 2, cannot be the sole ground for interfering with the order of injunction passed by the learned trial court. Hence, this Court is not inclined to allow the proposed construction to come up on the basis of the said affidavit and, as such, it is provided that the undertaking by the appellant No.2 vide the said additional affidavit dated 30.08.2018, filed before this Court shall not cause any prejudice whatsoever to the appellants in course of trial of the suit.
