Dismissed

Sri Balamurali Krishnamurthy v. Sri K N Vishwanath

Karnataka HC7 Nov 2024MFA/6358/2024

Case brief

AI extract

What is this about?

Appeal against a temporary injunction restraining a purchaser from constructing on suit property during a pending title dispute. The High Court upheld the injunction, noting lis pendens under Section 52 TPA, the plaintiff's prima facie case through a 1995 sale deed via power of attorney, and the appellant's conduct in building despite impleadment.

What the court decided

AI extract

Sri Balamurali Krishnamurthy Vs Sri K N Vishwanath — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:44941 MFA No. 6358 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS FIRST APPEAL NO.6358 OF 2024 (CPC)

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BETWEEN:

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SRI BALAMURALI KRISHNAMURTHY, S/O KRISHNAMURTHY LAKSHMANAN, AGED ABOUT 44 YEARS, R/AT FLAT NO.B1-056, DLF WESTEND HEIGHTS APARTMENT, AKSHAYA NAGAR, BANGALORE SOUTH, BANGALORE – 560 068.

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…APPELLANT

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(BY SRI. VARADARAJAN M.S., ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SRI K.N.VISHWANATH, S/O LATE NARAYANASWAMY, AGED ABOUT 61 YEARS, R/AT NO.285, 6^TH MAIN, 4^TH CROSS, BCC LAYOUT, NEAR CHANDRA LAYOUT, DOUBLE WATER TANK ROAD, VIJAYANAGAR, BANGALORE-560 040.

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SMT. SAROJAMMA, W/O LATE CHENNAPPA @CHINNAIAH, AGED ABOUT 77 YEARS.

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SMT. JYOTHI, W/O LATE NAGARAJ C., AGED ABOUT 47 YEARS.

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SAHANA, D/O LATE NAGARAJ C., AGED ABOUT 28 YEARS.

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HEMANTH KUMAR, S/O LATE NAGARAJ C., AGED ABOUT 25 YEARS.

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KODHANDARAMU C., S/O LATE CHANNAPPA @ CHINNAIAH, AGED ABOUT 50 YEARS.

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SMT. JYOTHI LAKSHMI, W/O KODHANDARAMU C., AGED ABOUT 35 YEARS.

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PRAJWAL, S/O KODHANDARAMU C., AGED ABOUT 19 YEARS.

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YESHWANTH, S/O KODHANDARAMU C., AGED ABOUT 16 YEARS

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RESPONDENT NO.9 IS MINOR, REPRESENTED BY HIS FATHER AND NATURAL GUARDIAN SRI KODHANDDARAMU C., (RESPONDENT NO.6)

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GOWRAMMA,

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D/O LATE VENKATARAMANAPPA, AGED ABOUT 62 YEARS.

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SMT. MANJULA, W/O LATE LAKSHMAN, AGED ABOUT 62 YEARS.

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ASHWINI, D/O LATE LAKSHMAN, AGED ABOUT 35 YEARS.

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SRI VENKATESH, S/O LATE LAKSHMAN, AGED ABOUT 32 YEARS.

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PARVATHAMMA, D/O LATE VENKATARAMANAPPA, AGED ABOUT 57 YEARS.

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SMT. NIRMALA, W/O LATE NARAYANAPPA, AGED ABOUT 52 YEARS.

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SMT. MANJAMMA, W/O LATE NARAYANAPPA, AGED ABOUT 47 YEARS.

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SRI NAVEEN, S/O LATE NARAYANAPPA, AGED ABOUT 22 YEARS.

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DIVYA, D/O LATE NARAYANAPPA, AGED ABOUT 17 YEARS, RESPONDENT NO.18 IS MINOR, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN SMT. MANJAMMA (RESPONDENT NO.16).

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SRI NAGARAJ, S/O LATE VENKATARAMANAPPA, AGED ABOUT 52 YEARS.

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SMT. BHAGYAMMA, D/O LATE SWARNAMMA, W/O NAGARAJ, AGED ABOUT 47 YEARS.

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SRI VINAYA, S/O NAGARAJ, AGED ABOUT 27 YEARS.

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SRI BHARATH, S/O NAGARAJ, AGED ABOUT 25 YEARS.

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RESPONDENTS 2 TO 22 ARE R/AT BEGUR VILLAGE AND HOBLI, BENGALURU SOUTH TALUK-560 068.

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SRI. C.N.KRISHNAMURTHY, S/O THOGURU NAGARAJA REDDY, AGED ABOUT 36 YEARS, R/AT NO.69, VITTASANDRA ROAD, LAKSHMI LAYOUT, BEGURU VILLAGE, BENGALURU- 560 068.

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SRI. V.NAGARAJA, S/O LATE VENKATAPPA, AGED ABOUT 78 YEARS.

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SMT. MAMATHA NAGARAJ, D/O V.NAGARAJA, W/O SATHISH NARAYANA REDDY, AGED ABOUT 39 YEARS.

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RESPONDENTS 24 AND 25 ARE R/AT NO.14, ‘ESHWARI NILAYA' 1^ST CROSS, THIMMAPPA REDDY LAYOUT, HULIMAVU GATE, B.G.ROAD, BENGALURU-560 076.

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SRI. R.THANIGAI MALAI, S/O LATE RAMAMURTHY, AGED ABOUT 61 YEARS, R/AT NO.629, 1^ST CROSS, 7^TH MAIN, VIJAYA BANK LAYOUT, B.G.ROAD, BENGALURU- 560 076.

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SRI. PRABHAKARA REDDY, S/O LATE R.KRISHNA REDDY, AGED ABOUT 56 YEARS, R/AT NO.2250, 15^TH 'C' CROSS, 22^ND 'B' MAIN, 1^ST SECTOR, HSR LAYOUT, BENGALURU- 560 102.

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SRI. HEMARAM CHOUDHARY VENARAM, S/O SRI. VENARAM CHOUDHARY, AGED ABOUT 38 YEARS, R/AT NO.2, JOGITH NIWASH, VENKATESHWARA LAYOUT, KUDLU, BENGALURU-560 068.

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SRI. SAMPANGI REDDY, S/O SRI. THIMMARAYAPPA, AGED ABOUT 48 YEARS.

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SMT. SWETHA, W/O SAMPANGI REDDY, AGED ABOUT 39 YEARS.

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RESPONDENTS 29 AND 30 ARE R/AT NO.1023, MASJID STREET, BEHIND MASJID, BEGUR, BENGALURU SOUTH TALUK, BENGALURU-560068.

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SRI. SETHU RAMA RAJU @ KRISHNA RAJU, MAJOR, R/AT NO.699, 13^TH MAIN, 2^ND CROSS, VIRATANAGARA, BOMMANAHALLI, BENGALURU-560 068.

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STATE BANK OF INDIA, R.A.C.P.C.-III, BANASAWADI BRANCH, NO.7M/422, MARUTHI MANSION, 80 FEET ROAD, KALYAN NAGAR, OPPOSITE HRBR LAYOUT, 1^ST BLOCK AND BANASWADI CLUB, BANASWADI, BENGALURU-560 043, REP. BY CHIEF MANAGER.

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…RESPONDENTS

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(BY SRI. A.MADHUSUDHANA RAO, ADVOCATE C/R1 ON I.A.No.4)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 17.08.2024 PASSED ON I.A. NO.4 IN O.S.NO.4307/2022 ON THE FILE OF THE XXXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-39), ALLOWING THE I.A.NO.4 FILED UNDER ORDER XXXIX RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2024:KHC:44941 MFA No. 6358 of 2024

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard, the learned counsel for the appellant and the learned counsel for respondent No.1.

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This miscellaneous first appeal is filed against the order of the Trial Court dated 17.08.2024 passed on I.A.No.4/2024 filed under Order 39 Rules 1 and 2 read with Section 151 of CPC in O.S.No.4307/2022 restraining the defendant No.31/appellant from putting up the construction in the suit schedule ‘A’ property, till the disposal of the suit.

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The factual matrix of the case of the plaintiff before the Trial Court is that the plaintiff had filed a suit for the relief of declaration to declare that the sale deeds dated 04.05.2022, 20.06.2018, 30.10.2021 and 25.03.2019 executed by defendant Nos.1 to 21 in favour of defendant No.22 and in turn defendant No.22 executing sale deed in favour or defendant No.23 and defendant No.23 in turn in favour of defendant No.24 and also defendant No.22 executing the sale deed in favour of defendant Nos.26 to 29, are illegal and void. The plaintiff also filed an application for amendment in respect of the sale made in favour of the appellant and the said application is pending for

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consideration. In the meanwhile, an application is filed seeking a restrained order against the appellant/defendant No.31 that he had taken up the construction work contending that the suit schedule property, which is morefully described in the schedule has been purchased by the plaintiff under the sale deed dated 17.05.1995 from Chinnappa, who is the power of attorney holder of all the family members of Siddamma i.e., defendant Nos.1 to 21. Ever since the purchase, khatha has been affected in his name and khath No.25 is reflected in the encumbrance certificate from 1994 to 2004 and so also from 01.04.2004 to 31.03.2016 and he is paying taxes to the concerned department from time to time. After filing of the above suit against defendant Nos.1 to 30, he recently came to know about defendant No.24 has executed the sale deed in favour of defendant No.31 and he was attempting to put up construction on the suit schedule ‘A’ property and when he questioned, he contended that he has purchased the suit schedule property from defendant No.24 vide sale deed dated 14.09.2022. Thereafter, on enquiry, he came to know that defendant No.31 on 18.04.2024 has executed a deposit of title deed in favour of defendant No.32 in respect of suit schedule ‘A’ property. Hence, he filed a complaint with the jurisdictional police and no action

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was taken on the ground that the same is a civil dispute and directed to approach the Court. The defendant No.24 intentionally and deliberately committed fraud by alienating the suit schedule property in favour of defendant No.31 during the pendency of the suit filed against him and in this background the plaintiff sought for the relief of temporary injunction against defendant No.31.

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The learned counsel for defendant No.31 filed a memo stating that the written statement of defendant No.31 may kindly be considered as objections to I.A.No.4/2024. In the statement of objections, it is contended that the plaintiff has sworn to a false affidavit stating that he is the owner in possession of schedule ‘A’ property. It is specifically contended that he has purchased the property through a registered sale deed dated 14.09.2022 and he became the owner of the property and he started the construction. The plaintiff can workout his remedy, if any, by way of separate suit against defendant No.31 and the application filed against defendant No.31 is not maintainable. Apart from that, not specifically pleaded and shown any material before the Court that ‘C’ schedule property is part of ‘B’ schedule property and ‘A’ schedule property also comes within ‘B’ schedule property and

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also ‘C’ schedule property is different and he has already taken up the construction and cannot seek any relief of temporary injunction.

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The Trial Court having considered the grounds urged in the application and also the objection statement, formulated the points whether the plaintiff has made out a prima facie case for grant of temporary injunction, whether the balance of convenience lies in favour of the plaintiff and whether irreparable loss any injury would be caused to the plaintiff if an order of temporary injunction is not granted. The Trial Court having taken note of the material on record and also the pleadings and objections, comes to the conclusion that the property was purchased by the plaintiff in the year 1995 and defendant Nos.1 to 21 are the parties to the general power of attorney executed in favour of Chinnappa, who is also the family member of the original owner Siddamma. Apart from that, the power of attorney was executed and the said power of attorney holder formed the site in the very same Sy.No.9 and sold the property and when interference of the defendants was found, at the first instance suit was filed against defendant Nos.1 to 30 and subsequently on interference of defendant No.31, an application is filed for impleading and impleading application was

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allowed and contested the matter. The Trial Court also taken note of the fact that defendant No.24 had sold the property in favour of defendant No.31 subsequent to the filing of the suit. The Trial Court also taken note of Section 52 of the Transfer of Property Act and extracted the same in paragraph No.21 of its order and in paragraph No.23 comes to the conclusion that the matter requires to be adjudicated and that the plaintiff has made out a prima facie case and balance convenience lies in favour of the plaintiff and if construction is not prevented, it will lead to multiplicity of proceedings and irreparable loss will be caused to the plaintiff and he will be put to hardship and if further construction is allowed, it will lead to causing of prejudice to the plaintiff and hence allowed the application and restrained order has been passed.

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Being aggrieved by the same, the present appeal is filed by the appellant/defendant No.31 contending that Siddamma had purchased 3 acres 2 guntas of land in Sy.No.9 from Aminabi under the sale deed dated 20.07.1938 and admitted the same. However, denied the execution of power of attorney in favour of Chinnappa by the children of Balavenkataramanappa said to be dated 01.03.1995 and the claim of the plaintiff that they have purchased the property

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under the sale deed dated 17.05.1995 is also denied. It is contended that defendant Nos.1 to 21 have sold the property on 04.05.2012 in favour of defendant No.22 and defendant Nos.1

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to 21 succeeded to the land in question and they were having right to execute the sale deed in favour of defendant No.22 in respect of ‘B’ schedule property and revenue entries are also found in respect of defendant No.22. The defendant No.22 got converted the land in 2015 and conversion fee of Rs.3,40,000/was paid and sold a portion of ‘B’ schedule property i.e., ‘C’ schedule property in favour of defendant No.23 and defendant No.23 got changed the records in his favour and gifted the property in favour of defendant No.24 and defendant No.24 sold the property in favour of this appellant and all these documents clearly shows that the title goes in favour of defendant No.31/appellant.

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The learned counsel contend that the Trial Court committed an error in holding that the plaintiff holds the sale deed dated 17.05.1995 in respect of ‘A’ schedule property and made out a prima facie case. The learned counsel contend that unless the identity and location of the property is established by the plaintiff beyond any doubt, the Trial Court ought not to have granted the relief of temporary injunction. It is also contended

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that the Trial Court committed an error in holding that khatha and revenue documents in respect of ‘A’ schedule property stands in the name of the plaintiff and he is paying the tax and the same cannot be a basis to come to the conclusion that the plaintiff has made out a prima facie case. The learned counsel contend that the Trial Court committed an error in relying upon the document dated 17.05.1995 without even caring to find out what was the right of the plaintiff’s vendor to execute the sale deed, more particularly when it is admitted that the entire survey number originally belongs to Siddamma and defendant Nos.1 to 21 are the legal heirs of the said Siddamma. The learned counsel contend that while passing the order of temporary injunction, the Trial Court has not taken note of the fact that already construction was started and defendant No.31 also produced two photographs before the Trial Court that already two floors building, including ground floor has come up and inspite of that, the Trial Court fails to take note of the same and committed an error in passing the restrained order. The remedy to the plaintiff is to seek for appropriate relief for demolition of the constructed building and the Trial Court fails to take note of exercising discretion in favour of the defendant No.31/appellant, who had already invested huge money by

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borrowing loan from defendant No.32 and hence it requires interference of this Court.

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The learned counsel for the appellant in support of his arguments relies upon the order passed by this Court in the case of MALAR VENI v. RAMAMURTHY reported in LAWS (KAR)-2023-9-50 and brought to the notice of this Court paragraph No.20, wherein this Court has observed that there is a clear dispute with regard to the identity of the property and the plaintiff also produced some of the documents with regard to the title is concerned and defendant also placed the document that originally property belongs to their ancestors and there was a partition in the family and they are in possession of the property by constructing the building and also produced the rental agreement as well as the electricity bill. The very contention of the appellant’s counsel that the Court can direct both the parties to maintain status quo was not accepted and comes to the conclusion that when there is a clear dispute with regard to the identity of the property, the question of granting interim order was declined and hence the factual aspects of this case is applicable to the facts of the case on hand and hence this Court has to set aside the order of the Trial Court and reject the I.A. filed by the plaintiff.

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Per contra, the learned counsel for respondent No.1

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would contend that there is no dispute with regard to the fact that originally the property to an extent of 3 acres 2 guntas belonged to Siddamma and out of that, 1 acre was sold earlier and remaining property is 2 acres 2 guntas in respect of original owner Siddamma. The learned counsel contend that there was a general power of attorney in favour of Chinnappa, who is none other than the son of Siddamma and all the legal heirs of the said Siddamma have executed the power of attorney on 01.03.1995. Based on the said power of attorney, he had obtained the plan from Begur Panchayat and sold the property and the plaintiff had purchased ‘A’ schedule property on 17.05.1995. The learned counsel contend that from the date of purchase, the plaintiff has been in possession of the property. The learned counsel contend that when defendant Nos.1 to 21 are parties to the general power of attorney executed in favour of Chinnappa, they could not have executed any sale deed in favour of defendant No.22 in respect of 12 guntas of land, which is morefully described as ‘B’ schedule property. The learned counsel contend that defendant No.22 sold the property in favour of defendant No.23 and defendant No.23 gifted the property in favour of defendant No.24 and defendant No.24 sold

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the property in favour of defendant No.31. The learned counsel contend that defendant No.24 sold the property after filing of the suit and he remained absent in the said suit and thereafter only sold the property and the Court has to take note of the conduct of defendant No.24, under whom defendant No.31 claims right.

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The learned counsel contend that the Trial Court

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while passing the order taken note of the sale made by defendant No.24, who was placed exparte in the original suit and subsequently selling of the property in favour of defendant No.31. The Trial Court also taken note of the fact that no permission is obtained from the Court while selling the property and even extracted Section 52 of the Transfer of Property Act, wherein it is specific that only under the authority of the Court the property can be sold. The learned counsel contend that when the plaintiff came to know about the property was sold during the pendency of the suit, immediately he filed an application in the month of June itself and appeared through counsel, but did not oppose the application for impleadment. Later on, after allowing of the application came up with the written statement and also filed objections and the same is with an intention to protract the proceedings to go on with the

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construction work and now cannot claim equity contending that he had constructed the building to the extent of 2 floors. The Trial Court having taken note of all these factors into consideration and considering the material on record passed the order. The learned counsel brought to the notice of this Court that defendant Nos.1 to 21 have executed a confirmation deed in respect of the sale made by Chinnappa and also they have admitted the very execution of power of attorney in favour of the said Chinnappa and selling of the property by Chinnappa in favour of prospective purchasers. The learned counsel brought to the notice of this Court the boundaries, which have been mentioned in the sale deed of the year 2012 in respect of ‘B’ schedule property and also in respect of ‘C’ schedule property which the appellant/defendant No.31 is claiming and contended that in all the documents, khatha number is mentioned as 35 and survey number is mentioned as Sy.No.9 making only the house list number and assigning the same and cannot contend that the suit schedule property cannot be identified as part of ‘B’ schedule property. The learned counsel brought to the notice of this Court document No.4 plan, which was approved by the then Begur Panchayat, wherein site numbers are mentioned and also marked the portion of ‘B’ schedule property which includes the

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site which the plaintiff had purchased from Chinnappa and hence cannot contend that the property is in dispute and no identification, cannot be accepted. The learned counsel brought to the notice of this Court that the sale deed in favour of defendant No.31 was executed on 14.09.2022 and prior to that, the suit was filed and now cannot claim equity.

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In reply to the arguments of the learned counsel for respondent No.1, the learned counsel for the appellant contend that even the said confirmation deed is also helpful to the appellant, since defendant Nos.1 to 21 have executed the confirmation deed in favour of other purchasers and the plaintiff has not obtained any confirmation deed from defendant Nos.1 to 21. Hence, cannot contend that confirmation deed helps the plaintiff.

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Having heard the learned counsel for the appellant and the learned counsel for respondent No.1 and also considering the material on record and also the grounds which have been urged in the appeal memo, the points that arise for the consideration of this Court are:

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(i) Whether the Trial Court committed an error in granting the relief of temporary injunction restraining defendant No.31 from putting up

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the construction and whether it requires interference of this Court?

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(ii) What order?

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Having heard the respective learned counsel, this Court has already made it clear that there is no dispute with regard to the fact that originally the property belongs to Siddamma. It is not in dispute that Siddamma had sold 1 acre of land long back in the year 1963 and retained 2 acres 2 guntas of land. It is the claim of the plaintiff that the legal heirs of Siddamma have executed the power of attorney in the year 1995 in favour of Chinnappa, who is none other than the son of Siddamma and the legal heirs of Siddamma are parties to the said power of attorney. The very contention of the plaintiff is that Chinnappa had formed the layout and sold the sites in the very same survey number and also sale deed is executed in favour of the plaintiff and other prospective purchasers. It is also not in dispute that the appellant/defendant No.31 has disputed the very power of attorney executed. But the fact remains before the Court that defendant Nos.1 to 21 have executed the confirmation deed in favour of other prospective purchasers admitting the document of power of attorney executed on 17.05.1995 and confirmed the sale executed by

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Chinnappa in favour of other prospective purchasers. It is important to note that defendant Nos.1 to 21 have sold the property to an extent of 12 guntas on 04.05.2012 in favour of defendant No.22 and already relief is sought against the said sale deed by the plaintiff seeking the relief of declaration and consequential sale made by defendant Nos.22 and 23 and other challenge is made seeking the relief of declaration. When such comprehensive relief is sought by the plaintiff and when plaintiff comes to know about the sale made by defendant No.24 in favour of defendant No.31 during the pendency of the suit, the Trial Court also taken note of the fact into consideration.

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It is important to note that there is a dispute with

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regard to the title of the plaintiff and defendant No.31, since defendant No.31/appellant disputes the very power of attorney and the plaintiff also questioned the very sale made in respect of ‘B’ schedule property and ‘C’ schedule property is part of ‘B’ schedule property as contended by the plaintiff. The very contention of the learned counsel for the appellant that the property is not identifiable cannot be accepted. The fact that the original owner is Siddamma is not in dispute and there was a transaction between the legal heirs of Siddamma also is not in dispute. May be they have disputed the execution of power of

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attorney and there are documents to show that Chinnappa had formed the layout and sold the property. The plaintiff is also claiming right through Chinnappa, who was having the power of attorney to form the layout and sell the property. When the document of confirmation is also produced before this Court, the contention of the learned counsel for the appellant that defendant Nos.1 to 21 have not executed any confirmation deed in favour of the plaintiff cannot be decided at this juncture. The Court has to take note of the prima facie case while granting the relief of temporary injunction whether the plaintiff has made out a prima facie case. The document of the plaintiff dated 17.05.1995 is executed by one of the legal heirs and based on the power of attorney executed by other legal heirs even if there is a dispute with regard to power of attorney also, the same cannot be considered at this juncture. The Court has to take note of the prima facie case. The documents stands in the name of the plaintiff consequent upon the property purchased from Chinnappa on 17.05.1995. All these documents are taken note of by the Trial Court while granting the relief of temporary injunction and also taken note of the fact that if construction is continued, it will lead to multiplicity of proceedings and hardship will be caused to the plaintiff and balance of convenience lies in

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favour of the plaintiff and also taken note of Section 52 of the Transfer of Property Act.

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The learned counsel for respondent No.1 also brought to the notice of this Court Section 52 of the Transfer of Property Act that there is a condition that except under the authority of the Court and on such terms as it may impose, Section 52 of the Transfer of Property Act attracts. The contention of the learned counsel for the appellant is that the Trial Court committed an error in invoking Section 52 of the Act. Whether Section 52 of the Act applies and whether the sale is made without the right, the same cannot be adjudicated while considering the temporary injunction and the very object of granting the relief is only with regard to prevent multiplicity of proceedings. The learned counsel for the appellant brought to the notice of this Court that already the appellant has taken up the construction. The material discloses that loan was obtained in the month of April for construction. No doubt, the property was purchased in September 2022 and loan was availed from the bank i.e., defendant No.32 in the month of April and thereafter he had proceeded to put up the construction when the application was filed in the month of June itself and prior to that, the appellant/defendant No.31 dug the borewell and

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thereafter commenced the construction and also application was filed for impleadment immediately in the month of June. The records reveals that the appellant/defendant No.31 did not file any objections to the I.A. and he was absent before the Trial Court and only after allowing of the application, he filed the written statement and adopted the objection statement and the said conduct has to be taken note of. The learned counsel for respondent No.1 rightly pointed out that the Court has to take note of the conduct of the appellant and he cannot seek equity and mere availing of loan from the Bank subsequently and taken up the construction cannot be a ground to allow the appeal. The plaintiff/respondent No.1 has made out a prima facie case with regard to his title is concerned and a comprehensive suit is also filed for the relief of declaration questioning all the sale deeds entered into between defendant Nos.1 to 31. The Trial Court has taken note of the said fact into consideration and hence, I do not find any error committed by the Trial Court in allowing the application in passing a restrained order.

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The very contention of the learned counsel for the appellant that respondent No.1 can seek the relief for demolition cannot be accepted, since knowing fully well that the suit is

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pending, an application is filed to implead him in the month of June itself and he proceeded to put up the construction at his peril. The learned counsel for respondent No.1 brought to the notice of this Court that other two writ petitions are filed before this Court and interim order is also granted. It is rightly pointed out by the learned counsel for the appellant that in that writ petitions, the plaintiff and the defendants are not parties and only the prospective purchasers have filed the writ petitions and when such being the case, those orders will not come to the aid of respondent No.1. This Court has to take note of the conduct of the appellant/defendant No.31, who proceeded to put up the construction even after impleading him and the sale was made during the pendency of the suit by defendant No.24 knowingfully well that the suit is pending and also the Court has to take note of the conduct of defendant No.24 as well as defendant No.31 and hence the order impugned cannot be interfered and modified as contended by the learned counsel for the appellant. There is no merit in the appeal to set aside the order of the Trial Court and hence I answer the point for consideration in the negative.

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