JUDGMENT : Dinesh Mehta, J. 1. By way of present writ petition under Articles 226 and 227 of the Constitution of India, the petitioners-plaintiffs have challenged the order dated 16.02.2017 passed by the Nyaya Adhikari, Gram Nyalaya, Kherwada, Udaipur in Civil Misc. Case No.03/2015 and the order dated 16.03.2017, passed by the Additional District Judge Kherwada, District Udaipur in Civil Misc. Appeal No.02/2017, deciding the application for grant of temporary injunction filed by the petitioners-plaintiffs under Order 39 Rules 1 & 2 of the Code of Civil Procedure, 1908. 2. Petitioners had filed a suit for mandatory injunction contending inter alia that the defendants are raising construction on the land, title, ownership and possession whereof belonged to them. They had also filed therewith an application seeking Temporary Injunction inter alia stating that the defendants have trespassed over the land and started raising construction on their land admeasuring 55 X 46 ft. It was stated by the plaintiffs that they had transferred land admeasuring 225 X 178 ft. duly converted for the residential purpose in Aarji No.698 at Village Banjaria. Plaintiffs have given details/particulars of the land which was sold to the defendants viz, one plot each, admeasuring 20 X 53 ft to defendant No.1 and 205 X 53 to defendant No.2, by way of registered sale deed dated 04.02.1997 and 05.02.1997. According to the plaintiffs, out of the remaining part of the said land parcel, admeasuring 225 X 72 ft., one plot out of these two plots ad measuring 125 X 72 ft. had been sold to the defendant No.3, by way of registered sale deed dated 07.02.1997. The plaintiffs stated that the remaining part of the land was in plaintiffs' possession which defendants wanted to purchase, however, the negotiation failed and transaction could not fructify. As per the plaintiffs, on 29.07.2015, the plaintiffs went to the site when they found that defendants have illegally encroached over the part of the land admeasuring 55 X 46 ft. and have started raising construction thereupon. Plaintiffs stated that cause of action had accrued to them on 30.07.2015, when the plaintiffs refused to transfer the land in question to the defendants and they started raising construction on the subject land. 3. The respondents-defendants filed written statement in the Trial Court and opposed the present writ petition, by way of filing a detailed reply. Plaintiffs stated that cause of action had accrued to them on 30.07.2015, when the plaintiffs refused to transfer the land in question to the defendants and they started raising construction on the subject land. 3. The respondents-defendants filed written statement in the Trial Court and opposed the present writ petition, by way of filing a detailed reply. It has been the stand of the defendants that the contentious land had been purchased by them and they are having title and possession over it. Showing the chain of title, respondents asserted that land in question had been purchased by them from Marta Ram and they have been enjoying the possession thereof. 4. The application for grant of temporary injunction came to be decided by the Gram Nyalaya, Kherwada, District Udaipur (hereinafter referred as 'the Trial Court') vide its order dated 16.02.2017. While deciding the question of prima facie case, the Trial Court had observed that in view of the conflicting statements of the parties particularly because both the parties have not placed before the Court, the correct site map and demarcation of the land, so also, documents relating to sale of the fourth plot, it was very difficult to ascertain the ownership of the contentious plot and the same can be decided only after complete trial and appreciation of relevant evidence. It has been observed that at the stage of application for Temporary Injunction, decision on ownership cannot be decided. The Trial Court had decided the issue of balance of convenience and irreparable loss in favour of the plaintiffs and disposed of the application for Temporary Injunction, observing that during the pendency of the trial, defendants shall not raise their construction on any other land, except the land mentioned in Para Nos. 4 & 5 of the application. It would be apt to reproduce the operative portion of the order dated 16.02.2017, which reads thus: ^^vr% izkFkhZx.k dh vksj ls izLrqr izkFkZuk i= ckcr~ vLFkk;h fu"ks/kkKk vkaf'kd :i ls Lohdkj fd;k tkdj fuEu vkns'k ikfjr fd;k tkrk gS fd%& 1- foi{khx.k dks rk&QSlyk ewy okn tfj;s vLFkk;h fu"ks/kkKk ikcan fd;k tkrk gS fd os vius }kjk [kjhn fd;s x;s Hkw[k.M] ftudk uki ,oa fooj.k izkFkZuk i= dh iSjk la[;k 4 o 5 esa vafdr fd;k x;k gS] ds vfrfjDr vU; fdlh Hkwfe ij dksbZ fuekZ.k dk;Z Lo;a ugha djs vkSj u gh vius ukSdj] ,tsaV vkfn ls djok;sA** 5. Feeling aggrieved with the aforesaid order dated 16.02.2017, the defendants preferred an appeal before the Additional District Judge, Kherwada, District Udaipur (hereinafter referred as 'the Appellate Court') by way of filing Civil Misc. Appeal No.02/2017, which has been partially allowed by the Appellate Court. The Appellate Court modified the order of the Trial Court dated 16.02.2017 and permitted the defendants to raise construction at their own risk and cost, subject to filing an undertaking to the effect that in the event of suit being decreed, they will remove the construction and not claim any cost of removal and construction. it would be relevant to reproduce the operative part of the order of the Appellate Court dated 16.03.2017, which reads thus :- ^^10- mDr lexz foospu ls vihykFkhZx.k dh vihy vkaf'kd :i ls Lohdkj dh tkdj fo}ku v/khuLFk U;k;ky; }kjk ikfjr vkns'k fnukad 16-02-2017 esa vkaf'kd la'kks/ku djrs gq, vkns'k fn;k tkrk gS fd vihykFkhZx.k&vizkFkhZx.k bl vk'k; dh vaMj Vsfdax fo}ku v/khuLFk U;k;ky; ds le{k 30 fnol esa izLrqr dj ns fd ewynkos esa izfroknhx.k ds lQy jgus ij os yxkbZ xbZ ykxr oknhx.k ls izkIr ugha djsaxs rFkk vkns'k nsus ij vius fuekZ.k dks Lo;a ds O;; ls gVk ysxsa ,oa tk;nkn vU; fdlh dks vUrfjr ugha djsaxs] bl vk'k; dh vaMj Vsfdax is'k dj ns rks fuekZ.k dk;Z iwjk dj ysA ;g vkns'k ewy nkos ds fu.kZ; ds v/khu jgsxkA** 6. A perusal of the order of the Appellate Court reveals that while dealing with the issue of prima facie case it had found that according to the plaintiffs' own pleadings, particularly as stated in Para No.6 of the application of the temporary injunction, the plaintiffs have asserted that the defendants had encroached upon their land. The Appellate Court concurred with the conclusion of the Trial Court that looking to 20 years old documents and number of transactions involved, it would be very difficult to come to a prima facie finding about the ownership of the land and, therefore, modified the order and permitted the defendants to raise and complete their construction, subject to filing an undertaking to the effect that in the event of suit being decreed, they would remove the construction and shall not claim any cost of removal and construction. 7. 7. The petitioners-plaintiffs have approached this Court essentially being aggrieved with the order of the Appellate Court wherein the Appellate Court has permitted the defendants to complete their construction. 8. Mr. Saruparia learned counsel appearing on behalf of petitioners-plaintiffs contended that the Appellate Court having substantially concurred with the findings of the Trial Court in relation to prima facie case, could not and should not have altered the order of the Trial Court. He contended that if the order impugned dated 16.03.2017 is allowed to sustain, the defendants will raise construction on the land which belong to the petitioners. He pointed out that the plaintiffs have placed enough evidence to show that they had sold only two plots to the defendants as mentioned in Para No.4 & 5 of the application and the contentious part of the land is not covered by the sale deed dated 04.02.1997 and 05.02.1997, vide which, the land had been sold to the defendants. 9. Learned counsel for the petitioners further contended that the order passed by the Trial Court dated 16.02.2017 was perfectly just and proper whereby the defendants have been asked to confine their constructions on their plots purchased from the plaintiffs, mentioned in Para No. 4 & 5 of the application. 10. Attacking the order of the Appellate Court, he submitted that the Appellate Court while modifying the order of the Trial Court was driven by the fact that the decision of the suit will take long time. He painstakingly submitted that firstly the apprehension of the Appellate Court was misplaced inasmuch as the suit in question was at the evidence stage and would hardly take any time and secondly, that such apprehension that the decision of the suit may take long time, cannot be a ground for modifying the order of the Trial Court. 11. Mr. Saruparia asserted that the defendants are raising construction on the land which does not belong to them, while referring to various assertions in the plaint. In support of his arguments he relied upon the judgments of the Hon'ble Supreme Court reported in Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass AIR 2005 SC 104 and Skyline Education Institute (Pvt.) Ltd. v. S.L. Vaswani AIR 2010 SC 3221 . 12. Mr. In support of his arguments he relied upon the judgments of the Hon'ble Supreme Court reported in Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass AIR 2005 SC 104 and Skyline Education Institute (Pvt.) Ltd. v. S.L. Vaswani AIR 2010 SC 3221 . 12. Mr. Ashwin Kumar Babel, learned counsel appearing on behalf of the respondents-defendants taking this Court to the pleadings of the rival parties, more particularly written statement filed by his clients contended that the entire case of the petitioners is concocted and factually incorrect. He submitted that the plaintiffs had already sold the entire land belonging to them and the land in question did not belong to the plaintiffs. The land in question had been purchased by the defendants-respondents by way of registered sale deed from one Marta Ram, who had purchased the same from Chhagan Lal. He showed the documents, revenue entries and calculation of plaintiffs' total holding and the plots sold by them to bring home the point that plaintiffs were left with practically no land and that their claim on the subject land was a farce. 13. Mr. Babel contended that the Appellate Court has plenty of power available to it to modify an order passed by the Trial Court, in the form of Order 41, Rule 33 of the Code of Civil Procedure, 1908. He urged that the defendants had shown prima facie title, possession and ownership over the said land and as such the, order dated 16.03.2017 passed by the Appellate Court meets the ends of justice, warranting no interference. He has relied upon the judgment of this Court dated 18.01.2011 rendered in S.B. Civil Misc. Appeal No.77 of 2011 (Narottam v. Geeta Devi & Ors.), wherein this Court had permitted defendants to raise construction, subject to identical conditions which the Appellate Court had imposed in the order under scrutiny. 14. I have heard learned counsel for the parties at length and perused the pleadings, relevant material and both the orders under consideration and have given my thoughtful consideration over the matter. 15. The judgments cited by Mr. 14. I have heard learned counsel for the parties at length and perused the pleadings, relevant material and both the orders under consideration and have given my thoughtful consideration over the matter. 15. The judgments cited by Mr. Saruparia, learned counsel for the petitioners are not applicable on the facts of the present case inasmuch as the judgment of the Supreme Court in the matter of Maharwal Khewaji Trust (Regd.), Faridkot (Supra), is an authority on the point that merely on account of pendency of litigation the Appellate Court should not modify the order and impose conditions. Where as, in the present case, the Appellate Court has modified the order, not being propelled by the pendency of the litigation. 16. The second judgment reported in the matter of Maharwal Khewaji Trust (Regd.), Faridkot (Supra) is also of little help to the petitioners-plaintiffs. Para No.16 relied upon by Mr. Saruparia is reproduced hereunder for ready reference. "16. The ratio of the above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the Court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity." 17. The above principle enunciated by the Hon'ble Supreme Court in the aforesaid judgment is trite. However, in the present case, the Appellate Court has given cogent reason for interference; Appellate Court has observed that both the parties have failed to satisfy the Courts regarding right, possession and ownership of the contentious property whereas the defendants have prima facie showed their possession over the said land and which possession has been admitted by the plaintiffs even in their pleadings. 18. In considered opinion of this Court, observing anything on the title and ownership, in relation to subject plot, on the basis of arguments advanced by the learned counsel for the parties at this stage, would unnecessarily prejudice their case, as such it would not be proper to delve deep into the issue of title by this Court, at this stage. 19. 19. A bare look at the pleadings of the plaintiffs particularly Para No.6 of the plaint reveals that they themselves have stated that the defendants have trespassed over the land and started construction on 29.07.2015, thereafter when the plaintiffs went to the defendants, they again started raising construction, which has given them a cause of action to approach the Civil Court by way of filing the present suit for mandatory and permanent injunction. 20. In view of the petitioners' own assertion, the Appellate Court has committed no error of law in observing that, prima facie the purported trespass over the land had been done by the defendants prior to the filing of the suit. 21. In this context, argument of Mr. Babel sounds logical that as the plaintiffs are residing just next door to the defendants and close to the disputed site, it cannot be believed that plaintiffs remained unaware of the encroachment, if any, for such a long time. Had the land in question belonged to the plaintiffs, they would have immediately objected to such encroachment. Even the Commissioner's Report reveals that substantial construction has been raised and wall up-to 9 ft. has been constructed. 22. Trial Court had confined the construction of the defendants up-to the plots purchased by them from the plaintiffs as narrated in Para No.4 & 5, completely ignoring or over looking the stand of the defendants that they had purchased, the subject parcel of land from Marta Ram by way of a registered sale deed. The plaintiffs' assertion that the subject land has not been sold to the defendants cannot be considered in isolation, they have to first satisfy that the land in question belonged to them. Plaintiffs have not been able to show that the land in question belongs to them. Be that as it may, the Trial Court has erred in restricting the defendants' construction within the bounds of the land mentioned in Para No.4 & 5 of the plaint. 23. Plaintiffs have not been able to show that the land in question belongs to them. Be that as it may, the Trial Court has erred in restricting the defendants' construction within the bounds of the land mentioned in Para No.4 & 5 of the plaint. 23. In the ultimate analysis of the factual matrix, this Court feels that the order dated 16.03.2017 passed by the Appellate Court, permitting respondents-defendants to raise construction subject to an undertaking to the effect that the defendants shall remove the construction and not claim any cost or damages for such removal, if the suit is ultimately allowed, appears to be just and proper and in tandem with the principles of justice and equity. 24. In view of the above discussion, this Court opines that the order dated 16.03.2017 passed by the Appellate Court does not call for any interference. The writ petition filed by the petitioners deserves to be dismissed and the same is dismissed hereby.