ORDER : Pradeep Singh Yerur, J. Heard learned counsel for the petitioner and learned counsel for the caveator/respondent Nos.1 and 2. 2. This petition is filed by the petitioner/appellant/plaintiff aggrieved by the impugned order passed by the 2nd Additional Senior Civil Judge and JMFC-Anekal in MA No.40/2024, dismissing the appeal filed by the plaintiff challenging the order passed by the III Additional Civil Judge, JMFC Anekal on IA No.1 in OS No. 596/2023, which was filed under Order XXXIX Rule 1 and Rule 2 read with Section 151 of CPC. 3. It is the contention of learned counsel Sri.K.B.S.Manian appearing on behalf of learned counsel Sri.Ramachandra Reddy B.R. that the impugned orders passed by the trial Court as well as the appellate Court on the application filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC is illegal, perverse, arbitrary and the same deserve to be set aside. 4. It is also the contention of learned counsel for the plaintiff that the suit is filed by the plaintiff for the relief of permanent injunction in which an application came to be filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC for an ad-interim order of temporary injunction which was initially granted, and later on, on appearance of the defendants and on contest the same came to be vacated, which is confirmed by the appellate Court in MA No.40/2024. It is contended by learned counsel that the trial Court as well as the appellate Court have not appreciated the merits of the matter on the facts of the case and have come to a conclusion that the plaintiff is the owner through his predecessors obtaining the right and title to an extent of 2 acres in Survey No.72 of the suit schedule property. Despite which, have come to a wrong conclusion that the boundaries are not properly described and demarcated, which is not the correct procedure to have been followed by the trial Court as well as the Appellate Court. 5. It is also contended by learned counsel for the petitioner that the trial court committed an error in holding that the plaint schedule property is half a kilometer away from the sites thus claimed to be put up by the defendants. 5. It is also contended by learned counsel for the petitioner that the trial court committed an error in holding that the plaint schedule property is half a kilometer away from the sites thus claimed to be put up by the defendants. It is further contended by learned counsel for the petitioner that in case there is any dispute with regard to boundaries and as per the case of the defendants that the land of the plaintiff is situated half a kilometre away, the same ought to have been resolved by way of appointment of a Court Commissioner for identification of the property, which has not been done by the trial Court as well as the appellate Court, thereby causing miscarriage of justice to the plaintiff. 6. He further contends that at least the Court could have passed an order of status quo to be maintained by the defendants where they have illegally put up construction of a building in pursuance to an order that was passed in favour of the plaintiff by way of an ad- interim measure prior to issuance of notice to the defendants. It is no doubt, he contends that defendants also filed suit for an injunction which was granted in his favour. But that does not preclude the plaintiff from obtaining an order of temporary injunction on the basis of the documents and facts exhibited by him in the plaint and the documents and affidavit annexed along with the application. 7. It is also vehemently contended by learned counsel for the petitioner/plaintiff that the trial Court ought to have resolved the issue with regard to boundaries by way of appointment of the Court Commissioner to demarcate their respective boundaries and could have ascertained the same and thereafter could have passed the order. It is his contention that he is the absolute owner of 2 acres of land in Survey No.72 of the suit schedule property and he has necessary documents to that effect. Also, the trial Court has agreed to this fact of the plaintiff being the owner of 2 acres of land in Survey No.72. When that was a situation, the trial Court ought not to have rejected the application for grant of temporary injunction and having rejected the same is illegal and arbitrary and contrary to the materials on record. Also, the trial Court has agreed to this fact of the plaintiff being the owner of 2 acres of land in Survey No.72. When that was a situation, the trial Court ought not to have rejected the application for grant of temporary injunction and having rejected the same is illegal and arbitrary and contrary to the materials on record. He further contends that the appellate Court having confirmed the same and rejected his appeal is also illegal and perverse. Therefore, he seeks indulgence of this Court to set aside the order passed by the trial Court as well as the appellate Court. 8. Per contra, the counsel representing the defendants before the trial Court, the respondents before this Court contends that he is the absolute owner of the A and B schedule property in the written statement, measuring to an extent of 1,200 square feet which has two sale deeds in Survey No.72/8 and that originally Survey No.72/8 measured to an extent of 3 acres 16 guntas. Therefore, the defendants became the absolute owner by way of a registered sale deed dated 16.07.2005, and thereafter he has put up construction after obtaining the necessary sanction plan and also an electricity connection to the suit schedule property to an extent of 1200 square feet in each property of two sites. Therefore, he contends that when defendants are in legal possession of the property by virtue of a registered sale deed in Site Nos.119 and 120 and have obtained the necessary license for putting up construction of a building and paid the taxes to the authorities and the khata of the property having transferred in their name, they cannot be disturbed from their possession and the trial Court and the Appellate Court have come to a right conclusion in rejecting the application for grant of injunction for the plaintiff under Order XXXIX Rule 1 and 2 read with Section 151 of CPC and vacated the same which is sustainable. 9. It is also contended by the learned counsel for the respondents/defendants that the plaintiff has to prove his case on behalf of his own independent right and the defendants have already filed a suit in another proceeding in O.S.No.418/2023 wherein they have also obtained an order of temporary injunction against the plaintiff herein, who is the defendant in the said suit. All these facts are appreciated by the trial Court as well as the appellate Court. He contends that it was a statement made by the plaintiff in the trial Court as well as in the appellate court that the defendants have put up construction and the same is admitted by the plaintiff with regard to construction and the defendants being in possession and enjoyment of the suit schedule property. Therefore the Court will have to now decide on the main matter with regard to who is the rightful owner of the suit schedule properties of the plaintiff as well as the suit schedule property described in the written statement, which of course, will have to be decided on the elaborate trial to be conducted. Therefore, he contends that the trial Court as well as the first appellate Court on consideration of the materials placed before both the Courts, came to a prima facie conclusion with regard to a case being made out by the defendants in their favour and the plaintiff having not made out a prima facie case for grant of an interim order at this stage and has rightfully rejected which does not call for interference. Accordingly, he seeks dismissal of this petition. 10. I have heard learned counsel for the plaintiff and learned counsel for the defendants. The point that arises for consideration is whether the impugned orders passed by the trial Court as well as the appellate Court are sustainable and whether they call for interference. 11. It is the fact that the Survey No.72 at Chikkanagamangala Village, Sarjapur, Anekal Taluk, Bangalore Urban District, measures to an extent of more than 25 acres and 22 guntas. Plaintiff has claimed relief in the suit for an extent of 2 acres in Survey No.72. Defendants are claiming to an extent of 1,200 square feet in each of the two sites, i.e., 2,400 square feet in site Nos. 119 and 120, which are purchased from out of Survey No.72/8 totally measuring to an extent of 3 acres from its vendor. At this stage it would not be appropriate for this Court to delve into the merits of the matter as it may intrude into the merits of the case and may affect the plaintiff as well as the defendants during the course of trial. 12. At this stage it would not be appropriate for this Court to delve into the merits of the matter as it may intrude into the merits of the case and may affect the plaintiff as well as the defendants during the course of trial. 12. What is required to be seen on an application file under Order XXXIX Rule 1 and 2 read with Section 151 of CPC are the three fundamental requirements i.e. prima facie case, balance of convenience and hardship that would be caused if an order is not granted to the aggrieved party. The trial Court, though, has come to a conclusion that the plaintiff is the owner of 2 acres in survey No.72 but has concluded that the boundaries are not properly described. That is a matter to be decided in the trial. For deciding an application under Order XXXIX Rule 1 and 2 read with Section 151 of CPC, the trial court or the appellate court has to come to a conclusion of the prima facie case and not the prima facie title or the property, so also the balance of convenience that would tilt in whose favour and hardship would be caused more to which of the parties. Initially in the suit filed by the defendants, an ad-interim order of injunction was granted in their favour, protecting their rights on the two sites i.e. site Nos.119 and 120 against the plaintiff herein in OS No.418/2023. Thereafter the plaintiff filed the suit in OS.No.596/2023 for injunction, where an ad-interim injunction was granted in favour of the plaintiff. 13. On hearing the defendants' after contest, the interim order came to be vacated, which is confirmed by the appellate court. Thereby, the application filed under Order XXXIX and Rule 1 and 2 read with Section 151 of CPC has been rejected. The fundamental requirements for the trial Court, as stated earlier, would have to be decided on the basis of the judgment of the Hon'ble Apex Court in the case Shiv Kumar Chadha -vs- Municipal Corporation of Delhi and others reported in (1993) 3 SCC 161 . 14. What is required to be seen is only a prima facie case and balance of convenience. It is necessary to see that the plaintiff has admitted to the defendants being in possession of the property where he has put up some construction. 14. What is required to be seen is only a prima facie case and balance of convenience. It is necessary to see that the plaintiff has admitted to the defendants being in possession of the property where he has put up some construction. But the same has been done during the pendency of the trial during the subsistence of an interim order in favour of the plaintiff, which again is the subject matter of a contempt petition pending before the Court. Whereas the defendants have placed material to show that they have put up construction based on certain documents like the tax paid receipt, khata, sanction plan, electricity bill, and other documents. 15. Admittedly the defendants in their written statement mentioned suit property, have stated that they have put up construction of a building. Whether the construction of the building is put up during the pendency of the interim order and any violation of the same is a matter that would have to be decided either in the contempt petition or in the trial when the parties' lead evidence. 16. This Court has not expressed any observation or opinion with regard to the title of the plaintiff or the defendants for their respective properties in the plaint and their written Statement Schedule. The same would have to be adjudicated in the course of trial. It is also submitted that the parties have already filed an application for appointment of a commissioner to identify the property and the construction put up in the schedule. It is for the respective parties to prove the case. The same cannot be decided on the application filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC as the trial would decide the same. Therefore, this Court is not inclined to interfere with the impugned order passed by the appellate Court as well as the trial Court. However, the trial Court will have to decide the matter with regard to the title and the construction of the building only upon adducing evidence by both the parties and if required, appoint a commissioner, as an application is already pending, which again will have to be done in accordance with law. For the foregoing reasons, I pass the following Order. For the foregoing reasons, I pass the following Order. ORDER The petition is dismissed , as I do not find any good ground or cogent reason to interfere with the orders passed by the trial Court as well as the appellate Court. 2. Ordered accordingly.