R.D. KOTHARI, J.

1. The petitioner – original defendant challenges granting of interim injunction by first appellate court in favour of the respondents – original plaintiffs.

2. Short question arises for consideration is consequence of alleged deviation from conditions of NA permission and deviation in plan which was submitted along with the application for NA permission.

3. Relevant facts are, thus – The respondents – original plaintiffs claim to own plots around the suit plot. The suit plot is known as ‘Devbhoomi Society Bungalows.’ It is the say of the respondents that they were constructing their building on the faith and belief that no complex or flats would be constructed in the said society and no shareholder would put up any construction in contravention of layout plan submitted before the authority at the time of applying NA permission. It is the further say of the respondents that petitioner – original defendant has illegally amalgamated four different plots into one plot. It is also the say of the respondents that easmentary rights would be seriously obstructed by the proposed construction of four storied building by the petitioner. Broadly on this pleading, the plaintiffs have instituted Regular Civil Suit No.62 of 2011 before the learned Principal Senior Civil Judge, Modasa. In the said suit, the plaintiffs have claimed relief in substance, it reads as under; It may be declared that in respect of the property mentioned in Para 3 i.e. suit property, defendant has no right to put up construction in violation of NA permission dated 2.4.2001 and also no right to put up construction in violation of layout plain attached with NA conditions dated 31.8.2001. That the suit property consists of Plot No.25, 26, 43 and 44 of part of Survey No.512 and its newly amalgamated plot is Plot No.25. That the defendant has no right to put up construction in violation of plan and conditions either on ground floor or of four storied flats. In this regard, the plaintiffs also pray for injunction.

4. The defendant, in his reply, has denied all the assertions made by the plaintiffs in their pleadings.

5. Considering the documentary evidence produced before it, the learned trial court, in order under Exh.5 application, has concluded that municipal authority has duly granted the permission to the defendant. That the plaintiffs have not challenged any action of the authority granting the sanction. Therefore, the plaintiffs have no prima facie case. The defendant being owner of the suit property is free to use the property as she likes. In absence of any complaint of any breach, balance of convenience cannot be said to be in favour of the plaintiffs. When both the ingredients for granting of the injunction are against the plaintiffs, it follows that defendant would suffer irreparable loss if the injunction is granted particularly when defendant has got sanction for construction from the authorities.

6. The order of refusal of injunction was carried in appeal and the learned Additional District Judge was pleased to allow the appeal. It would appear that following points weighed with the said appellate Court.

(I) That the learned trial court has not considered the documentary evidence produced by the plaintiffs in the proceedings. Secondly, there are specific averments made in the pleading about threat to the enjoyment of easementary rights.

(II) That there is no lawful amalgamation of four plots. No such order of amalgamation of plot is produced.

(III) If we consider margin land to be left open for putting up construction, for one plot versus margin land to be left open in case of each one of the plot – by developing each plot separately it would appear that the emerging picture of construction is not in consonance with the layout plain submitted at the time of obtaining NA permission.

(IV) That the Raja Chhithi issued by the municipal authority is bad and illegal for the reason – inter-alia – that it permits change of user from reside