Anil K. Sen, J.
1. This Rule was obtained by the defendants in Title Suit No. 362 of 1980 of the Court of the learned Munsif, Uluberia on a revisional application and is directed against an appellate order dated June 29. 1981, passed by the learned Subordinate Judge. 3rd Court, Howrah, in Misc. Appeal No. 28 of 1981 thereby affirming an order of temporary injunction granted by the learned Munsif as against the defendants. The Rule is being contested by the plaintiff/opposite party, the Zilla Parishad, Howrah.
2. It is not in dispute that by a registered deed of lease dated December 10, 1906, the District Board of Howrah, the predecessor-in-interest of the present plaintiff granted permanent lease in respect of 8 cottahs 9 chittaks and 35 square feet of barrow pit land described within boundaries in favour of the predecessor-in-interest of the present defendants. It would appear from the boundary of the leasehold land as set out in the said deed of lease that but for a village pathway on the north and Bagaan Station Road on the west there was no land of the lessor on the other two sides of the land so leased out. Such a permanent lease was granted on the consideration that the predecessor-in-interest of the present defendants excavated a tank for the District Board on his own land adjacent to the leasehold land abutting on the village pathway. It is also not in dispute that the predecessor-in-interest of the present defendants erected permanent structures on a part of the leasehold land since recorded in the C. S. records of 1930 -- the leasehold land being recorded as C. S. dags Nos. 1108, 1100 and 1099. It is also not in dispute that the total area of these three C. S. plots has been recorded as 20 decimals or near about 12 cottahs but the whole of it' has been recorded as in the possession of the defendants.
3. In that background when the present defendant/petitioners started raising further constructions of permanent nature on the 3 plots as aforesaid, the plaintiff raised a dispute to the 'effect that the defendants are encroaching upon Zilla Parishad land to the extent of nearly 4 cottahs. A proceeding under Section 144 of the Criminal P. C. was initiated on behalf of the Zilla Parishad where in an enquiry being held through an engineer it was found that there is no major encroachment either on the Station Road or on the village pathway and the defendants having given an undertaking in writing to the court that they would make no construction which would in any manner encroach upon the Station Road or the village pathway as per the enquiry report submitted in the said proceeding, the learned Magistrate disposed of the said proceeding recording the said undertaking.
4. The Zilla Parishad authorities, however, were not satisfied by the said order and they instituted the aforesaid Title Suit No. 362 of 1980 against the defendants for the following reliefs, namely,--
'(i) permanent injunction restraining the defendants from making any further construction of permanent nature on the leasehold land or any structure on the rest of the land in suit;
(ii) an injunction commanding the defendants to demolish the pucca structures made by them on the lands in suit;
(iii) temporary and ad interim injunction to the above effect.'
5. Having filed such a suit the plaintiff filed an application under Order 39, Rules 1 and 2 of the Civil p. C. for injunction restraining the defendants 'from raising any construction of permanent nature on the suit land which included not only the land alleged to have been encroached upon but also the leasehold land.
6. This application for injunction was strongly contested by the defendants. They disputed the claim of the plaintiff that there had been any encroachment whatsoever. According to them, the lease was granted at a time when the record of rights was not prepared. What had been recorded subsequently in the C. S. records as the area of the three plots is not the area of the leasehold land but also a part of the land belonging to the defendants' predecessor lying to the contiguous east of the leasehold land which alone explains the discrepancy as to the area. According to them, again the District Board or its successor the Zilla Parishad having no land contiguous to the disputed leasehold land there was no question of any encroachment on any land belonging to either of them. In opposing the prayer for interim injunction, the defendants not only claimed that they as permanent lessees are entitled to raise such construction but further pleaded that their predecessor had long ago raised such structures without any objection by the District Board. Moreover they made out a strong case of prejudice that they would suffer in the event such an injunction is granted on the ground that they had already proceeded with the construction to a great extent and the structures up to the ground level and part of the first floor, having been already completed and they having made all arrangements including collection of materials for completion of the construction, they would suffer irreparable loss and injury in the event such an interim injunction is granted.
7. On the pleadings as aforesaid, the learned Munsif proceeded to consider the plaintiff's prayer for interim injunction. The learned Munsif found that on the entries in the settlement records the defendants must be found to be in possession of the 3 plots measuring 20 decimals and at this stage it is not possible to hold as to whether there has been any encroachment by the defendants or not. But nonetheless relying on the provision of Section 108(1)(p) of the Transfer of Property Act the learned Munsif took the view that even as a lessee the defendants are not entitled to raise any permanent structure on the leasehold land without the consent of the lessor. In that view, according to the learned Munsif the plaintiff was entitled to an order of injunction as prayed for. The learned Munsif did not consider the respective cases of convenience and inconvenience though he observed that in view of the provision of Section 108(1)(p) of the Transfer of Property Act. the balance of convenience and inconvenience must be found in favour of the plaintiff. The defendants preferred an appeal, being Misc. Appeal No. 28 of 1981 as aforesaid. The learned Subordinate Judge not only concurred with the finding of the learned Munsif regarding the defendants' possession of the 3 plots, but he went on further to hold that the entries in the C. S. and R S. records raise a' presumption that the defendants have acquired a tenancy right in respect of the entire 20 cents of the aforesaid 3 plots under the plaintiff. He further found that the defendants are in possession of the entire 3 plots as tenants under the plaintiff and that they had already raised certain permanent structures thereon, Notwithstanding such a finding the learned Subordinate Judge went on to hold that in the absence of any agreement to the contrary Clause (p) of Section 108(1) of the Transfer of Property Act must be read as an implied covenant between the parties and, as such, the defendants are prohibited from raising any structures of permanent nature without the consent of the plaintiff notwithstanding the fact that the lease is one for perpetuity. On the question of convenience or inconvenience of the parties, the learned subordinate Judge relied on a single Bench decision of the Kerala High Court in the case of Kurian v. Job. : AIR1975Ker175 in holding that the question of convenience or inconvenience is of no moment when the breach complained of is in respect of a negative covenant. In that view the learned Subordinate Judge dismissed the appeal and confirmed the order of injunctions as passed by the learned Munsif. Feeling aggrieved, the defendants have now challenged those orders in the present revisional application.
8. Mr. Mukharji appearing in support of this Rule has strongly contended that the court of appeal below misguided itself in thinking that in the matter of granting an interim injunction in a case like the present one convenience and inconvenience of the parties would be of no moment and, as such, required no consideration. According to Mr. Mukherji the court of appeal below failed to appreciate that at this stage the court is not enforcing any negative covenant but is merely exercising its discretion in terms of Order 39 Rules 1 and 2 of the Code which must necessarily be based upon consideration of all factors relevant to the exercise of such jurisdiction. A negative covenant, if any, has to be established at the trial and enforced by the decree. It has further been contended by Mr. Mukherji that the two courts below were in error in thinking that there is no agreement to the contrary and, as such, Clause (p) of Section 108(1) of the Transfer of Property Act must be read as an implied covenant between the parties. According to Mr. Mukherji when it had consistently been held by this court that a right in favour of the lessee to raise permanent structure is an element indicative of permanency of the lease, the very fact that in the present case the lease on its express terms is a permanent one, indicates an implied agreement between the parties conferring a right on the lessee to raise permanent structure. According to Mr. Mukherji this aspect having been overlooked by the two courts below, the said courts arrived at a wrong conclusion that Clause (P) of Section 108(1) of the Transfer of Property Act must be read as an implied covenant between the parties in the present case.
9. Mr. Banerji appearing on behalf of the plaintiff/opposite party has contested all the points raised by Mr. Mukherji. According to Mr. Banerji conferment of a right to raise permanent structure does not necessarily lead to the conclusion that the lease is a permanent one. According to him even a lessee in respect of a temporary lease may be conferred the right to raise permanent structure on the leasehold land during the period of lease. Hence, according to Mr. Banerji the right to build a permanent structure is not necessarily a constituent element of a permanent lease. Mr. Banerji in his turn has strongly contended that in the absence of any express agreement to the contrary the two courts had rightly held that Clause (p) of Section 108(1) of the Transfer of Property Act must be read as an implied covenant between the parties which would entitle the plaintiff to ask for an interim injunction for enforcement of such a prohibition irrespective of the consideration of convenience or inconvenience of the parties. Incidentally, Mr. Banerji has raised a preliminary objection that the two courts be-low having jurisdiction to make an order of interim injunction, this court should not in the exercise of its revisional jurisdiction set aside an order so made even if the same was erroneously made as contended for by Mr. Mukherji.
10. Before I proceed to consider the contentions raised by Mr. Mukherji on their merits, I must, in fairness to Mr. Banerji, dispose of the preliminary objection raised by him to the effect that in the facts and circumstances this court should not in exercise of its revisional jurisdiction interfere with the order of injunction passed by the two courts below. On a careful consideration of the legal position in the facts and circumstances of the present case, I am, however, unable to sustain this objection raised by Mr. Banerji. I would have felt no hesitation in accepting such a contention if the ground for the challenge to the order had been merely one of error of law or fact not affecting the exercise of jurisdiction. In the present case the learned Munsif did not consider the mutual convenience and inconvenience of the parties while making the order of interim injunction though he observed that in view of the prohibition incorporated in Section 108(1)(p) of the Transfer of Property Act the balance of convenience and inconvenience must be held to be in favour of the plaintiff. Before the learned Subordinate Judge this point was specifically raised and the learned Subordinate Judge obviously found that this aspect had not been gone into by the learned Munsif. But nonetheless he observed that convenience or inconvenience of the parties is of no moment because what the plaintiff prays by an order of injunction is enforcement of a negative covenant. According to Mr. Mukherji the learned Subordinate Judge overlooked the position that the suit had not reached the stage where any negative covenant being established is to be enforced by a decree of in junction irrespective of the consideration of inconvenience or damage to be suffered by the party who had agreed to such a covenant. According to Mr. Mukherji at this stage the court is merely considering an application under Order 39. Rules 1 and 2 of the Code which requires the balance of convenience and inconvenience of the parties to be duly considered before an order of injunction is made and, as such, such a consideration could not have been excluded. If this contention of Mr. Mukherji be accepted then it would be well established that the courts below have exercised their jurisdiction in disposing of an application under Order 39, Rules 1 and 2 of the Code without due consideration of necessary elements which are required in law to go into the consideration of a court exercising such a jurisdiction. That makes the exercise of the jurisdiction one in breach of the provision of Order 39, Rules 1 and 2 of the Code and necessarily makes it a case where the court had exercised its jurisdiction if not illegally at least with material irregularity so that if it had resulted in serious prejudice to the defendants the order becomes open for challenge even in revision. In this view, I overrule the preliminary objection raised by Mr. Banerji.
11. This leads me to consider the more important point raised by Mr. Mukherji on merit, viz., whether the two courts below could have granted the injunction prayed for without considering the balance of convenience and inconvenience between the parties. In the facts set out hereinbefore it is quite apparent that though the plaintiff came with a primary complaint that the defendants had encroached upon a part of the plaintiff's land beyond the leasehold, upon the concurrent finding of the two courts below up to this stage no prima facie case in this regard has been made out. As a matter of fact the last court of fact has found that the defendants are in possession of the entire 20 cents of land covered by the 3 disputed plots as lessees under the plaintiff. Having found as such the two courts below proceeded to grant injunction solely because of the provisions of Clause (p) of Section 108(1) of the Transfer of Property Act reading the prohibition prescribed by the said clause as an implied covenant between the parties. It has, however, rightly been pointed out by Mr. Mukherji that such a clause is subject to an agreement to the contrary as provided for by Sub-section (1) itself. The court of appeal below proceeded upon an assumption that there is no such agreement to the contrary overlooking the position that it is yet for the court of fact to find at the trial whether such an agreement to the contrary is ingrained in the lease itself. it being a permanent lease or is otherwise established on evidence having regard to attending circumstances and the conduct of the parties. Though right to raise permanent structures does not always lead to establish the lease to be a permanent one, it goes without saying that such a right is considered by courts to be a relevant element indicating the lease to be permanent. If. therefore, right to raise a permanent structure is one of the elements of a permanent lease Mr. Mukherji has rightly pointed out that it is yet for the court to construe the lease, which admittedly is a permanent one, and determine whether it incorporates by necessary implication such a right in favour of the lessee at the trial. Moreover to me it appears when it is undisputed that the lessee under such a lease had already raised permanent structures since prior to 1930 without any objection in this regard on the part of the lessor it would be too hasty a conclusion at this stage of the suit to hold that Section 108(1)(p) of the Transfer of Property Act is not ruled out by an agreement to the contrary. Any observation of mine in this regard should not go to prejudice the decision of the courts below on that issue now awaiting adjudication at the trial. All that I mean is that at this stage of the suit in disposing of an application for interim injunction the courts below should not have assumed that there being no agreement to the contrary Section 108(1)(p) of the Transfer of Property Act must be read as an implied covenant between the parties. Such a view again was taken without reading the lease itself properly in the context of the conduct of the parties in this regard.
12. In this view I proceed to consider the main point raised by Mr. Mukherji viz., whether the court could have disposed of the prayer for injunction without considering the respective convenience or inconvenience of the parties and their mutual prejudice. On this point I feel inclined to agree with Mr. Mukherji that the courts below could not have ruled out consideration of convenience and inconvenience of the parties or their mutual prejudice while considering the prayer for interim injunction. It may be that the prayer for interims order is one in support of the principal relief in the suit which may be for enforcement of a negative covenant. But even then the court is exercising its discretion under Order 33 Rules 1 and 2 so that all matters relevant for the exercise of such a discretion must form part of its consideration. A negative covenant is to be so enforced as an agreement between the parties irrespective of inconvenience or damage to be suffered by the party who had agreed to such a covenant. But it has been rightly pointed out by Mr. Mukherji that such is the position when the suit is to be decreed or the final order is to be passed on an adjudication which establishes such a covenant. The decision of the Kerala High Court relied on by the court of appeal below lays down nothing more. In that case, the court had granted a decree enforcing a negative covenant against the lessee by injunction and the only point raised before the High Court was whether such a covenant could be enforced even during the continuance of the tenure of the lease. In that case the Kerala High Court was not called upon to consider whether convenience and inconvenience of the parties should form part of the consideration of the court disposing of an application for temporary injunction only because the temporary injunction has been sought for in aid of a relief for enforcement of an alleged negative coven-ant. In my view in disposing of an application under Order 39 Rules 1 and 2 of the Code, the court must take into consideration all the aspects. The fact that such a prayer is 'being made in aid of a relief for enforcement of an alleged negative covenant must enter into consideration as much as the mutual convenience of the parties and other attending circumstances like the conduct of the parties in relation to such a covenant. Such was the view expressed by the Madhya Pradesh High Court in the case of Md. Latif v. Smt. Amritkala, : AIR1959MP309 with which I respectfully agree. The learned Judge in the court of appeal below in citing authorities from Halsbury and Snell failed to appreciate the fact that there the point dealt with is with regard to the general mode of enforcement of negative covenants as a part of the agreement between the parties and not a point as to how an application for temporary injunction is to be dealt with. Mr. Mukherji on the other hand has cited Spry on Equitable Remedies pp. 498-500 and Snell on principles of Equity 20th Edition page 571 in contending that the rule that a negative covenant has to be enforced irrespective of other consideration is not such an absolute proposition that it admits of no exception particularly when such a covenant is not an express one. It is, however, not necessary for me at this stage to go into that issue. But I agree with Mr. Mukherji that in the present case orders impugned having been passed without taking into consideration the relevant factors cannot be sustained.
13. On the conclusion as above, the normal course for me to follow is to set aside the orders passed by both the courts and then send back the application for injunction to the trial court for re-consideration having regard to all material facts and considerations relevant for grant or refusal of an interim injunction. But I propose to dispose of the application myself since all the materials are on record and a remand at this stage would constitute harassment to the parties. The two courts have found, prima facie that the lease of the defendants extends to the plots in dispute and no case of encroachment has yet been made out whether the lease excludes a right to build permanent structure on the leasehold land is not free from doubt particularly when such structures were allowed to be raised since before 1930 without any objection from the lessors. Further structures which are now being raised are at an advanced stage when the ground floor and part of first floor are nearing completion. They have done so upon an undertaking given in the proceeding under Section 144 of the Code of Criminal Procedure that they would not raise any structure encroaching upon either the Station Road or the village pathway. In such a situation to restrain them by an injunction would necessarily mean irreparable loss and prejudice to them. On the other hand, the plaintiff had failed to make out what prejudice they would suffer if the defendants be permitted to complete the construction subject to the undertaking given by them. No case of prejudice so far as the plaintiff is concerned, having been made out in the facts and circumstances only on the off chance of the plaintiff being entitled to read Clause (p) of Section 108(1) of the Transfer of Property Act as an implied covenant between the parties, the plaintiff should not be favoured with an interim injunction.
14. In the result, this revisional application succeeds and the Rule is made absolute. The orders of injunction passed by the two courts below being set aside, the plaintiff's application for injunction is dismissed. There will be no order for costs.