4. Both the Courts below, on appreciation of the respective pleadings of the parties and the evidence let in by them found that the suit B-Schedule property was taken possession by the 1st defendant panchayat long back and the same is put into use for the benefit of the public by constructing the overhead tank and also establishing the children park. It is also found by the Courts below that the rest of the property in B-Schedule are left open for the use of the public for the pathway. No doubt, it is contended by the learned counsel for the appellant that the plaintiff has not executed any gift deed, without which, the defendants cannot enjoy the suit B-schedule property. Needless to say that it is the duty of the plaintiff to execute such gift deed in favour of the local body when such act was imposed as one of the condition for grant of approval. Failure on the part of the plaintiff, cannot be taken advantage by himself to seek for the relief of injunction, that too, when the fact remains that the plaintiff is not at all in possession and enjoyment of the B-Schedule property, as he himself as P.W.1, has admitted the establishment of the children park and also the construction of the over head tank in the suit B-Schedule which shows that the possession of the B Schedule was taken long ago and therefore, the plaintiff is not in possession and enjoyment of the same.
