JUDGMENT : Aravind Kumar, J. 1. This is a defendant's appeal challenging the order passed by 42nd Additional City Civil & Sessions Judge, Bangalore, dated 02.09.2014 in O.S. No. 6414/2014, whereunder I.A. No. 2 filed by the plaintiff for the relief of temporary injunction to restrain defendant or anybody on his behalf from putting up further construction in the scheduled terrace, has been allowed. I have heard the arguments of Smt. Nalina Mayegowda, learned Counsel appearing for appellant and Sri D.N. Narnjunda Reddy, learned Senior Counsel appearing for respondent. Perused the order under challenge. Parties are referred to as per rank in the trial Court. 2. Plaintiff has flied a suit for perpetual injunction to restrain, the defendant from putting up any illegal construction in the terrace area of the apartment Nos. 308 and 309 and in the terrace garden area of apartment No. 306, contrary to deed of declaration and administrative rules and regulations of plaintiff-Association and for a mandatory injunction to demolish and remove all illegal construction in the scheduled terrace garden area of apartment Nos. 308 and 309 and in the terrace garden area of apartment No. 306. In aid of common relief, an application was filed under Order 39, Rules 1 and 2 CPC for temporary injunction, which was resisted to by defendant contending inter alia that terrace a is owned by defendant and as such, defendant is entitled to put up structure in the said area and if an order of temporary injunction is granted, it would cause irreparable loss and injury to the defendant. Hence, on the ground of prima facie case and balance of convenience being in his favour, defendant sought for dismissal of the application. 3. Trial Court on appreciation of rival contentions found that prima facie case and balance of convenience is in favour of plaintiff and held if an order of temporary injunction refused, it is the plaintiff, who would be put to irreparable loss and injury and as such, has granted an order all temporary injunction in favour of plaintiff, which is under challenge in the present appeal by the defendant. 4. 4. Smt. Nalina Mayegowda, learned Counsel appearing for defendant would vehemently contend that under the sale deeds dated 07.06.2013 defendant and his wife purchased the flats 308 and 309 of Mangalya Apartments which includes the suit schedule property as described in the plaint schedule and defendant has exclusive right to use and enjoy 2828 sq. ft. private terrace area apart from apartments and other areas as described in the schedule to the said sale deeds and as such, plaintiff-association cannot restrain defendant from putting up construction, which according to Smt. Nalina Mayegowda is not a permanent structure but only a structure for the purposes of putting-up terrace garden. The documents produced before the trial Court has also been made available by learned Counsel for appellant. 5. Per contra, Sri D.N. Nanjunda Reddy, learned Sr. Counsel appearing for respondent - plaintiff would support the order passed by the trial Court and contends that members of the plaintiff--Association have framed administrative Rules and Regulations as permitted under Section 7 of the Karnataka Apartment Ownership Act, 1972 and as per the Deed of Declaration dated 14.06.2002 the memo hers of the plaintiff--Association including the defendant have to strictly adhere to the terms and conditions stipulated under the Deed of Declaration and as per clause 8.1 of the Deed of Declaration and clause 5.3 of the Administrative Rules and Regulations defendant cannot construct or put up structure either temporarily or permanent and the activity now carried on by the plaintiff is an illegal construction in the schedule terrace area and contrary to the clauses above referred to. Hence, he prays for dismissal of the appeal. 6. It is no doubt true that under the sale deeds dated 07.06.2013 defendant has purchased flats in question together with right to use and enjoy 2828 sq. ft., private terrace area. To a pointed question by this Court to the learned Counsel for defendant/appellant as to whether vendor of defendant had acquired exclusive right to convey the same in favour of defendant, learned Counsel has not been able to demonstrate at this stage, about such right, title and interest vested which defendant's vendor had to convey-the same in favour of defendant. Anyhow said issue would not have direct bearing at this stage, and as such, it is not delved upon. 7. Anyhow said issue would not have direct bearing at this stage, and as such, it is not delved upon. 7. The only issue which would arise for consideration is, whether defendant should be permitted to put up structure as sought for or not. 8. The deed of declaration which came to be produced before the trial Court and which is also been taken note of by trial Court, would indicate that parties namely, purchasers of apartments are bound by the said declaration. Under Clause 7.4 of deed of declaration, the description of various types of apartments are indicated and in Clause 7.5 the common areas and facilities extended to such types of apartments are also indicated. In sub-clause (16) of Clause 7.5 it has seen indicated that terrace areas excluding terrace areas given to select apartments is on a right of exclusive use basis and same has been indicated in blue color in the sketch annexed to said deed of declaration. Under Clause 7.6 permission to use the same (terrace area) by the owners of apartments, at their discretion, has been provided and under Clause 8.1 of the said declaration. Reserved garden areas and terrace garden areas (which is one now claimed by defendant) is for the use and enjoyment of apartments owners, who have specifically paid for the same and which is specifically earmarked for those to whom it is allotted. However, further Clause therein would indicate that such apartment owners "will not have right to construct anything thereon or alter the nature of use therein". In ether words said clause would clearly indicate that except providing far right of use, flat owners have been permitted to make any structural alteration. It is the unsold garden areas in the ground floor and third floor, which has been retained by the Grantors (developers) for exploitation of same at a later date. 9. Grievance of plaintiff-association is under the guise of right to use said garden area, defendant is attempting to put up permanent structure, which has been denied by the defendant. The photographs produced before the trial Court would clearly indicate that structure which is being put up by defendant, is of permanent in nature. 9. Grievance of plaintiff-association is under the guise of right to use said garden area, defendant is attempting to put up permanent structure, which has been denied by the defendant. The photographs produced before the trial Court would clearly indicate that structure which is being put up by defendant, is of permanent in nature. It is also found that the grills that have been used and pillars that are being put up by the defendant are permanent fixtures embedded to ground and as such, it has arrived, at a conclusion that it is a permanent structure. 10. At this juncture, Smt. Nalina Mayegowda, learned Counsel appearing for appellant would submit that only the terrace garden area is being used to put up construction, which area has been purchased by defendant and his wife under the sale deeds dated 07.06.2013 and no permanent structure would be put up in order to ensure to there is harmony between the apartment owners and there is cordiality between the apartment owners. 11. In the circumstances of the case, this Court is of the considered view that it would suffice if plaintiff- Association is directed to consider the request of defendant and permit such usage, if it is in accordance of deed of declaration and the rules and regulations governing the Karnataka Apartments Act, 1972. Complaints said to have been filed by the both parties before the jurisdictional police is also agreed to be withdrawn by both the parties. Their submission made in this regard, has been placed on record. 12. In view of the fact that prima facie records would indicate that defendant is attempting to put up permanent structure, trial Court has found after considering the deed of declaration and clauses therein that plaintiff is having a prima facie case and balance of convenience is in its favour and if an order of temporary injunction had not been granted, it is the plaintiff, who would have been put to irreparable loss and injury, inasmuch as, after such construction equities would have been in favour of defendant and defendant would have completed the structure in question as reflected in the photographs which had been produced before the trial Court, which has also been made available by the learned Advocates before this Court which indicates that they are permanent in nature. As such, no illegality can be found in the order passed by the trial Court. At the cost of repetition, it requires to be noticed that in the event of defendant were to submit representation to plaintiff's association, which is now said to have been newly reconstituted, said association and its office bearers without being influenced by the observations made by trial Court, shall consider the same sympathetically and in accordance with the deed of declaration, as well as extant Rules and Regulations governing the Karnataka Apartments Act. Accordingly, I proceed to pass the following: JUDGMENT (i) Appeal is hereby dismissed. (ii) Order passed by 42nd Additional City Civil & Sessions Judge, Bangalore, on I.A. No. 2 in O.S. No. 6414/2014, is hereby affirmed subject to observations made hereinabove. In view of appeal having been dismissed, I.A. No. 1/14 for stay, does not survive for consideration and same stands rejected.