The court upheld that an injunction may be granted based on prima facie evidence and balance of convenience even if construction is ongoing.

JUDGMENT

The Original Petition has been filed challenging the judgment dated 10.11.2025 in CMA No.10 of 2025 of the District Court, Pathanamthitta. The appeal was filed against the order dated 17.01.2025 in I.A. No.1 of 2024 in O.S. No.305 of 2024 of the Munsiff Court, Pathanamthitta. The petitioner is the 1^st defendant. The suit is for declaration of title, recovery of possession and fixation of boundary filed by the respondent.

2. According to the respondent, the plaint schedule items 1 to 3 belonged to one Vasudevan, the husband of the 2^nd defendant and the father of the plainti and defendants 1 and 3. Vasudevan died intestate leaving behind the plaintiff and the defendants as legal heirs. A partition deed had been executed between the plaintiff and the defendants in 2009 and according to the plaintiff, the property set apart to the share of the plaintiff is plaint schedule item No.1, which has clear visible boundaries at the north, south and west and a construction was begun by the defendant.

3. According to the plaintiff, the construction of the residential building in plaint item No.3 is by trespassing into item No.1 property. The plaintiff had sought for an ad-interim injunction to stop the construction. The trial court granted the injunction against which, an appeal was filed by the petitioner. The appellate court affirmed the order passed by the trial court. It is against the said order that the present Original Petition has been filed.

4. It is seen from the order of the appellate court that an Advocate Commissioner had been appointed at the instance of the petitioner to conduct a local inspection. The court noted that there is no dispute regarding execution of Exts.A1 to A5 documents, but the only dispute is regarding the location of the properties covered by the documents. The court found that prima facie it appears that the western boundary of item No.2 property shown in Ext.A2 as the property of the plaintiff is a mistake. However, the court observed that, that fact alone does not fully support the argument advanced by the petitioner that item No.3 is situated at the extreme western end of the property partitioned by Ext.A1 partition deed. Finally, the court concluded that only after perusing the prior title document, any inference about a mistaken description of the boundaries of the property can be drawn. Based on the report of the Advocate Commissioner that the construction presently going on is encroaching into the plaint item No.1 property, the court found that there is a prima facie case in favour of the plaintiff and that the balance of convenience is also in favour of the plaintiff. The court further said that injury is likely to be caused if construction is allowed to be continued, more to the plaintiff than the defendants. It is on the above reasoning that the order has been passed.

5. The learned counsel for the petitioner argued that the suit was filed more than seven months after the commencement of construction and that the plaintiff was aware of the construction, as his wife was residing in the neighbouring property. It is further submitted that the building construction has proceeded to the lintel stage and it is at that stage that the order of injunction has been granted. It is, hence, submitted that the damage that would be caused to the defendant by stopping the construction would be much greater than that caused to the plaintiff. Reliance is placed on the judgment of a Division Bench of this Court in Beena Kannan v. Abdullakutty and others [ 2013 (1) KHC 755 ], wherein this Court held that it is settled law that even if there is a prima facie case and balance of convenience in favour of the plaintiffs, injunction need not be granted, if the irreparable injury caused to the defendant will be more compared to the loss