JUDGMENT : Kalyan Rai Surana, J. Heard Mr. A. Lal, learned counsel for the appellant as well as Mr. N. Deka, learned counsel appearing for respondents No. 1 and 2 and Mr. G.N. Sahewalla, learned Senior Counsel, assisted by Ms. S. Katakey, learned counsel appearing for respondent No. 8. None appears for call for respondent No.7 although the names of the learned counsel for the said respondent appear in the cause list. None appears on call for the other respondents No. 3 to 6 and 9 although notice has been duly served on them. 2. With the consent of the learned counsel for the appearing parties, the matter has been heard at the admission stage. 3. By this appeal under Order XLI Rule 1(r) read with Section 104 and 151 CPC, the appellants have challenged the order dated 23.03.2018, passed by the learned Civil Judge No.3, Kamrup (M), Guwahati in Misc.(J) Case No. 767/2017 in T.S. No. 373/2017. 4. By ad-interim order dated 19.09.2017, the said learned Court had restrained appellants as well as Respondents No. 3 to 9 and deceased defendant No.3 (i.e. defendants No.1 to 10), their legal heirs, successor, agents, etc. from disturbing the peaceful possession and use of the Schedule-B land and path by the respondents No. 1 and 2 (i.e. plaintiffs) for their ingress and egress and also in the use of 2 (two) feet wide drain of Schedule-B land, further restraining the appellants and respondents No. 3 to 10 and deceased defendant No.3 (i.e. defendants No. 1 to 10) from proceeding with any further construction over the land described in Schedule-C of the plaint. Thereafter, by the impugned order dated 23.03.2018, the ad-interim injunction granted on 19.09.2017 was made absolute till the disposal of the suit. 5. As per the plaint, the case of the respondents No. 1 and 2 is that they are the owners of the plot of land described in Schedule-A of the plaint, which was purchased by their predecessor-in-interest from the predecessor- in- interest of the respondents No.3 to 5 by way of a sale deed, which was registered before the Sub- Registry as Deed No. 4084 dated 14.09.1989. As per the Schedule contained in the said sale deed, the respondents No.1 and 2 were given right to use the 6 (six) feet wide approach road in the northern side of Schedule-A land and also a running drain thereon. As per the Schedule contained in the said sale deed, the respondents No.1 and 2 were given right to use the 6 (six) feet wide approach road in the northern side of Schedule-A land and also a running drain thereon. The common passage (6 feet wide) and drain (2 feet wide), is stated to be 142 feet in length and 8 (eight) feet in breadth is described in Schedule-B of the plaint. The remaining land measuring 3.96 Are, of the appellant No. 2 and the respondents No. 3 to 9 are described in Schedule-C of the plaint. A rough diagram (not to scale) showing the land of all the three schedules is given in ScheduleD of the plaint. 6. That as per the documents available on the record, the appellant No.1 i.e. M/s. Gajanan Structures (defendant No.10) is a registered partnership firm of the appellant No.2 as well as respondents No. 8 and 9. 7. In the plaint, it is projected that Late Khirod Lal Mukhopadhyay, the predecessor- in- interest of the respondents No.3 to 7 and deceased defendant No.3, was the owner of land measuring 6.6 Are, comprising of Schedules-A, B and C. Out of the said land, he had sold 1.61 Are land described in Schedule-A to the respondents No.1 and 2 and, as such, 4.99 Are land (inclusive of Schedule-B and C) had remained in his name. However, while selling 1.61 Are land, the respondents No.1 and 2 had been given common right to use the passage and drain described in Schedule-B, which is about 1.03 Are land. Hence, land described in Schedule-C, measuring only 3.99 Are was left with the respondents No. 3 to 7 and deceased defendant No.3. 8. The respondent No.7 (defendant No.6) had appointed the appellant No.1, represented by the appellant No.2 as his constituted attorney vide Power of Attorney No. 1150/13 dated 03.04.2013, allowing the said attorney to carry out land development and construction over the land measuring 7.4 lechas out of land measuring 1K-17L (stated to be forming a part of land described in Schedule -B and C), for which, the respondent No.7 and the appellant No.1 had entered into a "Memorandum of Understanding to Construct Apartment" (MoU for short), registered as Deed No. 2646/2013 dated 03.04.2013. Similarly, the respondents No. 3 and 4 and the appellant No.1 had also entered into a separate "MoU", registered as Deed No. 4824/2015, and for the said purpose, they had also gave a Power of Attorney, bearing Deed No. 1694/2015, both dated 27.04.2015 in favour of the appellant No. 1, represented by the respondent No.2. 9. That out of the said 3.99 Are land described in Schedule-C of the plaint, the respondents No. 5 and 6 (defendants No. 4 and 5) along with defendant No. 3 (since deceased), had sold land measuring 2.97 Are to (i) appellant No.2, (ii) respondent No. 8, and (iii) respondent No. 9 (defendants No. 7, 8 and 9), vide Sale Deed No. 9028/2014 dated 22.08.2014. 10. In the plaint, it is projected that by virtue of the said subsequent sale deed, the appellants and the respondents No. 3 to 10 were not only seeking to reduce the area of the common passage from 6 (six) feet to 5 (five) feet, but they had omitted to mention the existence of 2 (two) feet wide running drain that existed within the Schedule-B land. Therefore, challenging the said sale deed No. 9028/2014 and the above referred two Power of Attorney and the two MoU, referred above, the respondents No. 1 and 2 had filed a suit, which was registered as TS No. 373/2017, wherein the respondents No.1 and 2 had, amongst others, prayed for a decree, declaring that the respondents No. 1 and 2 are entitled to possession, occupation and use of the Schedule-B land for the purpose of ingress and egress as well as for sewerage/ drainage, water, electricity connection for the Schedule-A land in terms of the Sale Deed dated 14.09.1989 without interference from the appellants and the other respondents No. 3 to 9 and deceased defendant No.3; for a decree for permanent injunction, restraining the appellants No.1 and 2, the respondents No. 3 to 9 and deceased defendant No.3 from making any construction on the Schedule-C land by encroaching upon the Schedule-B land; for a decree restraining the appellants, respondents No. 3 to 9 and deceased defendant No.3, their heirs, successor and agents etc. or any other person claiming their peaceful possession and the use of occupation as well as from making any further construction from schedule-B land; for a decree for demolition and recovered illegal boundary wall and/ or other structure/ encroachment put up by the appellants, respondents No. 3 to 9 and deceased defendant No. 3; for setting aside and cancelling the subsequent sale deeds, 2 (two) MoU and 2 (two) Power of Attorneys; and for other relief as prayed for in the plaint. 11. Along with the said suit, a separate injunction application under Order XXXIX Rule 1 and 2 read with Section 151 CPC was also filed, which was registered as Misc. (J) Case No. 767/2017, inter-alia, praying for ad-interim injunction in terms of the prayers made therein. 12. The learned trial court by order dated 19.09.2017, in Misc.(J) Case No. 767/2017, issued ad-interim injunction as already indicated above and thereafter, upon hearing the leaned counsel for both sides, the said ad-interim injunction was made absolute by the impugned order which is the subject matter of challenge in this appeal. 13. The learned counsel for the appellants has made elaborate arguments to describe the area of land described in the Schedule-A, B and C land of the plaint and it is projected that the land described in Schedule-B was for use of both sides and, as such, only a limited grant of use was given in respect of the Schedule-B property, which was without any consideration and, as such, the ownership rights of the appellants as well as the respondents No. 3 to 9 over the land described in Schedule-C has not vanished, but it was lawful for them to use the said land for the purpose of calculating side set-back margin, which is valid and not illegal. Therefore, it is submitted that as the rights of the respondents No.1 and 2 to use Schedule-C land for ingress and egress and for running drain the suit was not bona fide, because by undertaking construction on the schedule-C land, the respondents No. 1 and 2 cannot be prejudiced in any manner whatsoever. On the point of easement by grant, the learned counsel for the appellants has relied on the case of Hero Vinoth (minor) Vs. Seshammal, (2006) AIR SC 2234. 14. On the point of easement by grant, the learned counsel for the appellants has relied on the case of Hero Vinoth (minor) Vs. Seshammal, (2006) AIR SC 2234. 14. It is further submitted that as against the NOC for construction granted by the Guwahati Municipal Corporation, the respondents No. 1 and 2 had availed appropriate alternative and efficacious remedy by raising their complaint before the Commissioner, GMC, who had heard the parties on 17.06.2017 and thereafter, passed a speaking order dated 13.07.2017, by directing the appellants to submit a revised site plan showing the entrance to the rear side of plot owned being Sri Biswajit Deb i.e. the respondent No. 1 herein and, as such, the grievance of the respondents No. 1 and 2 was duly addressed. In this connection, it is further submitted that the issuance of approved plan was within the realm of powers conferred under the GMC under the applicable building bye-laws and, as such, by necessary implication, the jurisdiction of Civil Court was barred for any adjudication on the correctness of the approved plan and the NOC for construction and in respect of drain. It is further submitted that the respondents No. 1 and 2 do not have any inherent proprietary right over the land described in Schedule-C of the plaint and, as such, they could not have prayed for any ad-interim injunction for stopping construction of the land described in Schedule-C of the plaint. In this connection, it is further submitted that right of the appellants over a part of the land described in Schedule-C of the plaint had accrued on the basis of the Sale Deed No. 9028 dated 22.08.2014, executed in favour of the appellant No.2 and respondent No. 8 and 9 (defendants No. 7, 8 and 9) as well as from the 2 (two) MoU by the other co-owners, viz., respondent No.7 and respondents No. 3 and 4 in favour of appellant No.1. 15. The learned counsel for the appellants has drawn the attention of this Court on the additional affidavit filed on 30.08.2018 before this Court and he has referred to the unconditional undertaking by the appellant No.2 not to make any construction over the land described in Schedule-B of the plaint. 15. The learned counsel for the appellants has drawn the attention of this Court on the additional affidavit filed on 30.08.2018 before this Court and he has referred to the unconditional undertaking by the appellant No.2 not to make any construction over the land described in Schedule-B of the plaint. It is further submitted that at page 149 and 150 of this memo of appeal, the respondents No. 1 and 2 had projected a boundary wall separating the Schedule-C land from the passage described in Schedule-B. In the regard, it is submitted that the wall is a partial wall of a house constructed beyond the said wall and therefore, the wall is not a boundary wall, but it is a wall of one side of the building and therefore, the said wall cannot be equated to a "boundary wall", demarcating the common passage and drain described in Schedule-B of the plaint. 16. In support of his submissions, the learned counsel for the appellants placed reliance on the case of Musstt. Anjira Khatoon Hazarika Vs. Tapan Kumar Das, 2015 1 GauLR 133 . The case of Shiv Kumar Chadha Vs. Municipal Corporation of Delhi, (1993) 3 SCC 161 was cited to project that when an application under Order VII Rule 11 CPC for rejection of the plaint was pending for adjudication before the learned Civil Court, the learned trial court ought not to have been passed any order of ad-interim injunction. 17. The cases cited by the learned counsel for the appellants are: (a). Hero Vinoth ; (b). Shiv Kumar Chadha ; (c). Pradip Tibrewalla Vs. Ritesh Kumar Tibrewala and Others., W.A. No. 134/2018, decided on 24.05.2018; (d). Musstt. Anjira Khatoon Hazarika ; (e). Ranjit Kumar Saikia Vs. Jugal Sahu, CRP No. 331/2014, decided on 05.05.2016; (f). Pradip Tibrewalla Vs. Ritesh Kumar Tibrewala and Others., I.A.(C) No. 3760/2017, decided on 08.01.2018. 18. Making his submission in support of the case of the appellants, Mr. G.N. Sahewalla, learned Senior Counsel for the respondent No. 8 has submitted that the impugned order passed by the learned trial court is vitiated by several inconsistencies and errors. It is also submitted that the impugned order was passed by the learned trial Court merely on the basis of conjunctures and surmises. G.N. Sahewalla, learned Senior Counsel for the respondent No. 8 has submitted that the impugned order passed by the learned trial court is vitiated by several inconsistencies and errors. It is also submitted that the impugned order was passed by the learned trial Court merely on the basis of conjunctures and surmises. It is also submitted that without discussing the merits of the arguments advanced by the learned counsel for the parties, the learned trial court had mechanically passed impugned order by making the ad-interim injunction granted on 19.09.2017, absolute. It is submitted that the learned trial court had only considered one side of the story that if the construction would come up on the Schedule-C land, the path of the Schedule-B would become narrow, for which the respondents No. 1 and 2 would definitely face greater inconvenience as compared to the appellants and the other respondents. In the said context, it is submitted that the NOC for construction had clearly shown the eastern side margin to be 3.76, with cantilever projection at 1.50 m, which would not affect the common path in any manner. It is also submitted that the learned trial court had totally erred in law and on facts by holding that the Schedule-B path cannot be utilized for entry of light vehicle even in case of certain emergency, which is whimsical and not borne by facts. Hence, on incorrect and wrong assumptions, the learned trial court restrained the appellants and the respondents No. 3 to 9 from disturbing the peaceful possession and use of Schedule-B path by the respondents No. 1 and 2 for their ingress and egress and also in their use of two feet drain on the Schedule-B land. It is submitted that the learned trial court without assigning any reason had granted injunction against the appellants and the respondent No. 8, amongst others, from carrying out their proposed construction on the Schedule-C land. In this connection, it is submitted that as the appellants have filed an undertaking before this Court vide additional affidavit filed on 30.08.2018, not to carry out any construction on the land described in Schedule-B of the plaint. Hence, the necessity of any ad-interim injunction to stop construction on the Schedule-C land was not warranted and, as such, the said order allowing ad-interim injunction is liable to be set aside. 19. Hence, the necessity of any ad-interim injunction to stop construction on the Schedule-C land was not warranted and, as such, the said order allowing ad-interim injunction is liable to be set aside. 19. Per-Contra, the learned counsel for the respondents No. 1 and 2 (i.e. the plaintiff) has made his submissions in support of the impugned order by submitting that the Sale Deed No. 4084 dated 14.09.1989, by virtue of which the respondents No. 1 and 2 had purchased the land described in Schedule-A of the plaint in the verna cular version, displays that the respondents No. 1 and 2 were granted right to use 6 (six) feet land along with a running drain. He has submitted that there is no dispute that both the sides cannot use the said common path. However, the respondents No. 1 and 2 has reasonable apprehension on curtailment of their right to use the passage and the drain. It is submitted that the genesis of the present dispute is that in Sale Deed No. 9028 dated 22.08.2014, by which the appellant and the respondents No. 8 and 9 had purchased a part of Schedule-C land, the six feet wide road with running drain mentioned in the Schedule appended to the previous Sale Deed No. 4084 dated 14.09.1989 was reduced to five feet passage only. Moreover, by referring to the affidavit submitted by the appellants for grant of building permission (pp.147-148-A of Memo of Appeal), it only mentions about 5 (five) feet wide passage and there was no reference to the 2 (two) feet drain which exists on Schedule-B land. In view of above, it is submitted that not only the appellants and the respondents No. 3 to 9 have denied the existence of the two feet wide drain, but there is now a dispute between the parties as regards one feet of the six feet wide road which appears in the schedule Sale Deed No. 4084 dated 14.09.1989 executed in favour of their predecessor- in- interest. The learned counsel for the respondents No.1 and 2 has provided a chart showing the various land measurements, relevant for this case, which is reproduced below:- Land Are Sq. metres Sq. feet Land originally owned by Late Khirod Lal Mukhopadhyay. 6.6 660 7,104 Land sold to Bibha Deb, predecessor of respondents No.1 and 2. The learned counsel for the respondents No.1 and 2 has provided a chart showing the various land measurements, relevant for this case, which is reproduced below:- Land Are Sq. metres Sq. feet Land originally owned by Late Khirod Lal Mukhopadhyay. 6.6 660 7,104 Land sold to Bibha Deb, predecessor of respondents No.1 and 2. 1.61 161 1,733 Land included in the common passage as per inspection report dated 19.07.2018 (43.6m X 2.43m). 1.06 106 1,140 Balance land with LRs of Late Khirod Lal Mukhopadhyay. 3.93 393 4,231 Land included in building plan 4.75 475 5,113 Difference 0.82 82 882 Land sold by defendants No.3, 4 and 5 to defendants No. 7 to 9. 2.97 297 3,197 Land given for development by defendants No. 1 and 2 to appellant No.1. 0.99 99 1,066 Land given for development by defendant No. 6 to appellant No.1 0.99 99 1,066 Thus, total land sought to be given by LRs of Khirod Lal Mukhopadhyay to defendants No. 7 to 10. 4.95 495 5,328 20. The learned counsel for the respondents No. 1 and 2 has submitted that insofar as the allegation of encroachment over the rights of the respondents No.1 and 2 is concerned, not only the respondents No. 1 and 2 are aggrieved by the reduction of common passage to 5 (five) feet, but it is submitted that the inclusion of the Schedule-B land for the purpose of utilization in "FAR" (Floor Area Ratio) also amounts to encroachment on their right to use the path which has nothing to do with the reduction of the size of the path. Referring to the NOC granted by the GMC Authority and the speaking order dated 13.07.2017 passed by the Commissioner, GMC, it is submitted that the Commissioner, GMC was of the opinion that the entrance to the premises of the respondents No. 1 and 2 should remain open as per the terms of the agreement. But there is every likelihood that the appellants and the respondents No. 8 and 9 would exit the land after the building is constructed and they would either sell off the space or lease it out, and if the prospective purchasers or lease-holders are not bound by such an undertaking by the appellants and respondents No. 3 to 9, it would create a perpetual dispute. It is submitted that no flat owner would be willing to purchase flat in a building where the passage is perpetually left open because keeping an entrance open would invite many troubles. 21. By further referring to the affidavit (pp.147-148-A of Memo of Appeal), filed by the appellant No.2 and respondents No. 3, 4, 7, 8 and 9 of which the respondents No. 4 was a minor, it is submitted that even in the said affidavit, the said deponents had referred to only five feet road and though had undertaking that the respondents No. 1 and 2, who are residing at the rear side can use the common passage road for the ingress and egress for which they had no objection and in this regard, it is submitted that there was no question of any "no objection" by the said appellant No.2 and respondents No. 3, 4, 7, 8 and 9 because right of the respondents No.1 and 2 to use the passage has accrued on them from the Sale Deed of 1989, and it was not subject to any consent from any party to the present litigation. It is submitted that moreover, the said affidavit dated 26.07.2016 is referred to in the order dated 17.07.2017 by the Commissioner, GMC. Hence, the breadth of the common passage shall be a source of dispute involving the respondents No.1 and 2 in perpetuity. 22. Countering the case of Hero Vinoth , the learned counsel for the respondents No. 1 and 2 submits that the said citation does not help the appellants, rather it comes to the aid of respondents No. 1 and 2 because when it is the matter of grant, the parties are bound by the agreement and in this regard, it is submitted that the appellants and the estate of deceased defendant No.3 and the respondents No. 3 to 9 are bound by the terms and conditions of the Sale Deed No. 4084 dated 14.09.1989, by which the respondents No.1 and 2 derive their right to use 6 (six) feet wide common passage and the running drain. 23. It is submitted that they have serious objection of the construction on the basis of the present NOC and the approved site plan because the site plan clearly reflects the cantilever, projecting over the common passage. 23. It is submitted that they have serious objection of the construction on the basis of the present NOC and the approved site plan because the site plan clearly reflects the cantilever, projecting over the common passage. It is also submitted that this Court should be conscious that if the appellants had disclosed about common passage existing on Schedule-B land, it is quite possible that the GMC authority would have considered only the Schedule-C land for granting constructing permission. By referring to the approved plan and the NOC for construction, it is submitted that while granting building permission, the GMC authorities had taken into account both the Schedule-B and C land for calculating the FAR (i.e. Floor Area Ratio). It is submitted that the respondents No.1 and 2 would have no grievance if the appellants and respondents No. 3 to 9 had disclosed the 6 (six) feet wide passage and the 2 (two) feet wide drain for carrying out construction of the Schedule-C land. However, in the present case, the documents speak of itself that the existence of 6 (six) wide passage and 2 (two) feet wide drain was concealed and that it was projected before the GMC authorities that the appellants and respondents No.3 to 9 would have no objection if the respondents No.1 and 2 used five feet wide passage. In this context, it is submitted that the respondents No.1 and 2 were compelled to approach the Court for remedy. 24. The learned counsel for the respondents No. 1 and 2 submits that the said respondents are unable to concede to the construction have carried out on the Schedule-C land on the basis of undertaking given before this Court in the form of additional affidavit filed on 30.08.2018 because the NOC for construction dated 30.11.2016 and the speaking order dated 13.07.2017, passed by the Commissioner, GMC did not recognize the six feet wide common passage and the two feet wide drain as projected by the respondents No. 1 and 2. 25. It is submitted that the learned trial court had examined all the aspect of the matter and had given a well reasoned order for grant of injunction. Therefore, by relying on the case of (i) Wander Ltd. Vs. Antox India (P) Ltd., (1990) Supp1 SCC 727, and (ii) Md. Mehtab Khan Vs. 25. It is submitted that the learned trial court had examined all the aspect of the matter and had given a well reasoned order for grant of injunction. Therefore, by relying on the case of (i) Wander Ltd. Vs. Antox India (P) Ltd., (1990) Supp1 SCC 727, and (ii) Md. Mehtab Khan Vs. Khushnuma Ibrahim Khan and Others., (2013) 9 SCC 221 , it is submitted that as the learned trial court had exercised its discretion judicially, the appellate court ought not to substitute its view on the discretion exercised by the learned trial court. 26. It is also submitted that the suit was not barred under Section 41(h) of the Specific Relief Act, 1963 as the issues raised by the respondents No. 1 and 2 in the plaint cannot be decided by the GMC and GMDA because the challenge by the respondents No. 1 and 2 relates to the protection of their right flowing from the Sale Deed No. 4084 of 1989 dated 14.09.1989. Moreover, the respondents No. 1 and 2 are not only challenging the building permission, they are also claiming cancellation of the Sale Deed No. 9028/14, two Power of Attorney, bearing Deed No. 1150/13 and 1694/15, 2 (two) MoU bearing Deed No. 2646/13 and 4824/15, as well as other relief’s. It is also submitted that as the finding of the learned trial court cannot be held to be perverse and, as such, this Court ought not to set aside the order impugned herein. 27. The learned counsel for the respondents No. 1 and 2 further placed reliance on the inspection report submitted before this Court by associated planner, GMC dated 19.07.2019, pursuant to the order of this Court dated 12.07.2018. By relying on the said report, it is submitted that the width of passage and the drain in 2.43 metre is equivalent to eight feet, which supports the case of the respondents No.1 and 2, as such, the injunction granted by the learned trial court ought not to be interfered with. 28. Having heard the arguments advanced, it is seen that the respondents No. 1 and 2 are claiming their right to use the passage and the drain on the basis of a registered Sale Deed No.4084 dated 14.09.1989. 28. Having heard the arguments advanced, it is seen that the respondents No. 1 and 2 are claiming their right to use the passage and the drain on the basis of a registered Sale Deed No.4084 dated 14.09.1989. The Schedule, which depicts the northern boundary is as follows- "oo: Sri Khirod Lal Mukhopadhayay*, chhoy footi rasta oo solito nala" (rough English translation would be North- Sri Khirod Lal Mukhopadhayay and six feed road and running drain). At the end of the schedule, it is stated as follows- "*Uttar dikhar ukta rasta o nala khariddar o bikreta ubhay pokhyay baybohar koribo" which roughly translates to the effect that "the said road and drain on the northern side would be used by both purchaser and seller". Therefore, prima facie, there is no doubt that as per the said sale deed, there exists a reference to six feet wide common passage as well as the drain thereafter. 29. This Court by order dated 12.08.2016 passed in this appeal, had requested Mr. S. Borah, learned standing counsel for the GMC to be present and requiring the Commissioner of GMC to depute and Associate Planner to carry out inspection of the disputed land and to inform the court about the measurement of land on which construction is being carried out on the strength of a "no objection certificate for construction" issued by the GMC vide Memo No. GPL/BP/ 14/636/27062016/98/1582 dated 30.11.2016 with approved site plan, which was later on modified. The scope of the inspection was as under:- (I) It is seen that in the original site plan, the size of the plot is shown to be 475.04 Sq.M. Therefore, whether the said are is in exclusion of a drain as well as the passage which is situated on the eastern side of the land where construction is being carried out. (II) (a) The measurement of length and breadth of the passage and the drain which exists on the eastern side of the land where propsed construction is being carried out. The said passage leads to the house of Shri Biswaji Deb. (b) Whether there is any sign of passage and drain being demarcated by any brick wall to separate the construction site and the passage and drain. If any sign of such wall and/ or partition wall exists, then the drain and the passage, as referred to above, shall be measured from such point. (b) Whether there is any sign of passage and drain being demarcated by any brick wall to separate the construction site and the passage and drain. If any sign of such wall and/ or partition wall exists, then the drain and the passage, as referred to above, shall be measured from such point. (III) The actual measurement of land where construction is being carried out, which is to be measured from the wall and/ or partition wall referred above (i.e. excluding the drain and passage). 30. Accordingly, an inspection was carried out by an Associate Planner of the GMC along with two Zonal Engineer of the GMC and a report dated 19.07.2018 has been received by this Court. Their findings are as follows: (I) The said land area 4.75.04 Sqm is inclusive of drain as well as the passage. (II) (a) the lengthy of passage with the drain is 43.60 metre. The breadth of the passage with the drain is 2.43 metre. (b) a partial brick wall is present in the site demarcating the plot and the passage and the measurement of the breadth of the passage has been taken of the wall as specified above. (III) There is no construction work carried out in the plot. However, the breadth of the plot excluding the passage and the drain is 9.57 metre and the length of the plot 43.6 metre. 31. The learned Counsel for the appellants and the respondents No.1 and 2 have agreed at the Bar that passage and drain lies on the eastern side of Schedule-C land, which falls in the north of Schedule-A land. As per the NOC dated 30.11.2016 referred above, the setback margin of the east is shown to be 3.76 metre (which is roughly 12.33 feet) and a cantilever projection on the eastern side is permitted cantilever to be 1.50 metre (which is roughly 4.92 feet). The 6(six) feet wide passage and the two feet wide drain is comes to about 2.43 metre. Therefore, the projection made by the respondents No. 1 and 2 in the plaint that there is a passage and the drain on the northern side, being Schedule-B land, prima-facie appears to be correct. The 6(six) feet wide passage and the two feet wide drain is comes to about 2.43 metre. Therefore, the projection made by the respondents No. 1 and 2 in the plaint that there is a passage and the drain on the northern side, being Schedule-B land, prima-facie appears to be correct. Thus, even if the cantilever projection of 1.5 metre is accounted for, calculated from the east side setback of 3.76 metre would leave a margin of only 1.26 metre (which would be equivalent to about 4.13 feet), as such, the cantilever would project over 6 (six) feet wide passage after the 2 (two) feet wide drain. However, if there is no cantilever projection, the proposed building appears to not cause any obstruction to the common passage. 32. On a perusal of the documents annexed to this memo of appeal, from the order dated 13.07.2017, passed by the Commissioner, GMC, it appears that the GMDA had issued planning permit vide No. 950/0126/15-16/110 dated 24.06.2016 with a condition that an affidavit/ undertaking is to be furnished by the applicants (i.e. appellant No.2 and respondents No. 3, 4, 7, 8 and 9) for allowing accessibility to the rear side plot/ building. From the said affidavit and the cause title of this appeal it appears that the respondent No.4 is a minor. At this stage, this Court has refrained from commenting on the enforceability of the said affidavit signed, amongst others, by a minor. However, the said affidavit dated 26.07.2016, refers to an existing five feet wide road only with no mention of 2 (two) feet wide drain. From the speaking order dated 13.07.2017, passed by the Commissioner, GMC, it prima facie appears to this Court that the said affidavit dated 26.07.2016 was submitted in terms of GMDA permit dated 24.06.2016 as reflected in said speaking order. A photocopy of the sanctioned drawing has a reference to the 3.60 metre wide internal road (equivalent to 11.81 feet). Therefore, as per the sanctioned plan, there is internal road of 3.60 metre (equivalent to 11.81 feet), which is found referred to in the order dated 13.07.2017, passed by the Commissioner, GMC, but it has no reference to the 2 feet wide drain. Thus, the width of the common passage and drain is required to be adjudicated. 33. Therefore, as per the sanctioned plan, there is internal road of 3.60 metre (equivalent to 11.81 feet), which is found referred to in the order dated 13.07.2017, passed by the Commissioner, GMC, but it has no reference to the 2 feet wide drain. Thus, the width of the common passage and drain is required to be adjudicated. 33. In this context, by an additional affidavit filed on 30.08.2018, the appellant No.2, on behalf of both the appellants had undertaken not to make any construction over the 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. 34. From the above discussion, it prima facie appears that as per the NOC and approved plan, the cantilever of the proposed building of the appellants and the respondents No. 3 to 9 would encroach over the six feet wide passage after the two feet wide road, as such, there appears to be a prima facie case for trial. The balance of convenience is found to be in favour of grant of injunction because as per the Sale Deed No. 4084 dated 14.09.1989, the respondents No.1 and 2 and the respondents No. 3 to 6 have the right to use 6 (six) feet wide common passage and drain, which as per the report by the GMC, is 2 (two) feet wide. However, as per Sale Deed No. 9028 dated 22.08.2014, the land sold is bounded in the eastern side by a 5 feet wide road and land of Naha Bhawan, which has not only reduced the passage size, but has also negated the drain. 35. It has already been referred that as per the Sale Deed No. 9028 dated 22.08.2014, the land sold to the appellants and the respondents No. 8 and 9 is bounded in the eastern side by a 5 feet wide road and land of Naha Bhawan. Similarly, the affidavit dated 26.07.2016 submitted by the appellant No.2 and respondents No. 3, 4, 7, 8 and 9 and the order dated 13.07.2017 by the Commissioner, GMC also recognize only 5 (five) five feet wide road. But, very interestingly, as per the contents of the two MoU bearing Deed No. 2646/13 and 4824/15, the land given for development and construction of apartment mentions that land is bounded in the eastern side by Naha Bhawan. Thus, in the said agreement, there is neither the existence of any common passage, nor there is an existence of a drain. 36. Thus, in the said agreement, there is neither the existence of any common passage, nor there is an existence of a drain. 36. Therefore, his Court is of the view that if the said discrepancies relating to eastern boundary of proposed construction, which is described in the plaint as Schedule-B land is not settled prior to the commencement of construction, there is every likelihood that there would be ample scope for future disputes amongst the parties or between the respondents No.1 and 2 and the third party, upon whom some right may be created by the appellants and the respondents No. 3 to 9 as well as by the legal representative of the deceased defendants No.3. 37. The case of Hero Vinod (Minor), cited by the learned counsel for the appellants does not appear to help the appellants, rather, the ratio is found to help the respondents No.1 and 2, because by the Sale Deed No. 4084 dated 14.09.1989, a right to passage was granted to the respondents No. 1 and 2, which binds the parties to the said sale deed to the terms of the grant. Therefore, it prima-facie appears that the appellants, respondents No. 3 to 9 and the estate of deceased defendant no. 3 cannot wish away the existence of six feet wide passage and the running drain on the northern side in terms of the said registered sale deed of 1989. Moreover, the land covered by the common passage and the drain still belongs to the vendors, inclusive of the appellants and the respondents No. 3 to 9 and the legal representatives of the deceased defendant No.3 and, as such, the said parties are obliged to allow the respondents No.1 and 2 to common use of the passage and running drain. 38. The case of Pradip Tibrewala, does not apply under the facts of this case because in the said case, the proposed construction was coming up on the land of the appellant/ applicant therein. Therefore, the right to passage was not the subject matter in the said case. The case of Sri Ranjit Kumar Saikia and the case of Musstt. Anjira Khatoon Hazarika also does not appear to help the appellants as the issue of maintainability is not within the scope of this appeal. Therefore, the right to passage was not the subject matter in the said case. The case of Sri Ranjit Kumar Saikia and the case of Musstt. Anjira Khatoon Hazarika also does not appear to help the appellants as the issue of maintainability is not within the scope of this appeal. In this context, this Court is of the prima-facie view that merely because the respondents No. 1 and 2 had submitted a complaint before the Municipal Authorities on the building permission, the said authorities do not have the empowerment to decide all the issues raised in the suit. The aforesaid observation made by this Court is in the context of the two judgments cited by the appellants, which is not a finding of fact on maintainability of the suit by this Court, because this Court is not called upon to adjudicate on the point as to whether the suit was maintainable under Section 41(h) of the Specific Relief Act, as such, only for the limited purpose of the grant of ad-interim injunction, this Court is of the prima-facie view that as the suit was not barred under Section 9 CPC. Hence, the learned trial court had the power to grant ad-interim injunction under the facts and circumstances of this case. Moreover, the case of Musstt. Anjira Khatoon Hazarika is related to existence of public drain and the right of the concerned parties to use the drain. Therefore, as the public drain was under the control of the GMC, the suit was held to be not maintainable for encroachment over the public drain. However, in the present case, it is nobody's case that the drain existing on the Schedule-B land is a public drain. Hence, this Court does not find any infirmity in the grant of ad-interim injunction by the learned trial Court. 39. The scope of the appellate Court in the matter of grant of injunction by the learned trial Court is well defined in the case of Wander Ltd. as well as the case of Md. Mehtab Khan . It appears to this Court that the view taken by the learned trial court is a plausible and/or a possible view, there is hardly a scope for interference by this appellate court. 40. In view of the discussions above, the present appeal fails and the same stands dismissed. Mehtab Khan . It appears to this Court that the view taken by the learned trial court is a plausible and/or a possible view, there is hardly a scope for interference by this appellate court. 40. In view of the discussions above, the present appeal fails and the same stands dismissed. The order dated 23.03.2018, passed by the learned Civil Judge No.3, Kamrup (M), Guwahati in Misc.(J) Case No. 767/2017 in T.S. No. 373/2017 does not require any interference and the same stands affirmed. 41. The observations made above is only a prima-facie view of this court for the limited purpose of deciding this appeal arising out of a prayer for ad-interim injunction and, as such, the observations made herein or by the learned trial court in the impugned order shall not influence the learned trial court while deciding the suit on its own merit. 42. The parties are left to bear their own cost.