THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.4517 of 2010 Date:18th March, 2011 Between: Jingidi Chandraiah ..... Petitioner AND 1. A.B.Mahammad & Ors. .....Respondents *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.4517 of 2010 ORDER: This Civil Revision Petition is directed against the order, dated 03.08.2010, passed in C.M.A.No.5 of 2010 on the file of the Senior Civil Judge, Wanaparthy, whereby and whereunder the learned Senior Civil Judge dismissed the C.M.A. 2. The petitioner is the defendant and whereas the respondents are the plaintiffs in O.S.No.44 of 2010 on the file of the Junior Civil Judge, Wanaparthy. The plaintiffs filed the suit for mandatory injunction restraining the defendant from proceeding with the further construction over the suit schedule property i.e. 15 feet road on the eastern side of the house of 1st plaintiff bearing No.42-31 situated in Sainagar Colony, Wanaparthy. 3. The case of the plaintiffs is:- The mother of the 1st plaintiff viz., Smt.Habeeb Bee purchased a house plot bearing No.12 in Survey No.1154 admeasuring 66’ x 68’=498.66 sq. yards situated in the limits of Wanaparthy village under a registered sale deed. The defendant and one Jangidi Ramulu are the original owners of the agricultural land in Survey No.1154. They converted the agricultural land into residential plots and sold them to different persons through their G.P.A. Golla Ramulu. The mother of the 1st plaintiff purchased Plot No.12 from the said Golla Ramulu, who is the GPA holder of the original owners. According to the plaintiffs, the registered sale deed indicates the existence of 15 feet rastha on the east of the site purchased by the mother of the 1st plaintiff. The plaintiffs also moved an application being I.A.No.90 of 2010 under Order 39, Rules 1 and 2 CPC, seeking temporary injunction restraining the respondent/defendant from proceeding with the further construction in the disputed site. The defendant filed counter resisting the application. It appears that an Advocate Commissioner came to be appointed to inspect the suit site. The Advocate Commissioner submitted his report. The learned Junior Civil Judge, on considering the report of the Commissioner and on hearing the counsel appearing for the parties, proceeded to direct both the parties to maintain status quo, by order dated 07.04.2010. Para.11 of the order needs to be noted and it is thus: “11. By filing Ex.P1 the petitioners are able to prove that prima facie case is in their favour and about the existence of road on the eastern side of the house of mother of plaintiff No.1. As already said whether it is the road as claimed by petitioners or it is own land of the respondent as claimed by the respondent, could be decided after full- fledged trial only. Learned counsel for respondent contends that the suit itself was filed for mandatory injunction and if the petitioners succeed in the suit, the respondent has to pull down the structures with his own costs and as such there is no need to stop the construction work of respondent. I am of the considered view, if the respondent is not restrained from proceeding with further construction at this stage, if he loses the suit, he has to pull down the entire structures made by spending huge amounts, and in that event the respondent would suffer more irreparable loss with huge amounts than the loss now going to be sustained by him by way of stopping the work at this stage. If the entire building was completed with all fittings, then it would be very difficult for respondent to remove those structures and in that event he would suffer extreme irreparable injury. Therefore, to safeguard the interest of both parties, I am of the view that stutus quo shall be maintained with regard to the suit property obtaining as on today. According to the peculiar circumstances of this case, this court is forced to arrive at this conclusion having regard to the disputed question of fact relating to the existence of road as claimed by the petitioners and the existence of the own land of the respondent as claimed by him and the said controversy should be put to an end conclusively at the time of final disposal of the suit only and a finding of fact cannot be arrived at this stage in these proceedings without there being any oral evidence. A commissioner was also appointed and he took out the photographs and CD to show the stage of construction. The same could be looked into at the final disposal of the suit since there is no dispute with regard to construction and the stage of construction. Learned counsel for respondent cited a decision of the Hon’ble Supreme Court in Narendera Kante Vs. Anuradha Kante & others (2010 SAR (Civil) 138] and contends that if respondent suffers irreparable loss and injury, granting of interim order is improper and not justified. The balance of convenience and irreparable loss are separate in each case. I have perused the facts and circumstances of the said case. The facts and circumstances of the said case are not at all applicable to the present case.” The respondent/defendant assailed the order passed by the learned Junior Civil Judge in I.A.No.90 of 2010 in O.S.No.44 of 2010, by filing C.M.A.No.5 of 2010 on the file of the Senior Civil Judge, Wanaparthy. The learned Senior Civil Judge, on reappraisal of the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the defendant failed to make out any valid ground to interfere with the order impugned in the C.M.A. and thereby proceeded to dismiss the C.M.A. directing the trial Court to dispose of the suit O.S.No.44 of 2010 within six months, by order dated 03.08.2010. Hence, this revision. 4. Notice before admission came to be ordered on 22.10.2010. Despite notice being served on the respondents/plaintiffs, they did not choose to enter appearance either in person or through a counsel. 5. Heard learned counsel appearing for the petitioner/defendant and perused the order impugned in the revision. 6. Learned counsel appearing for the petitioner/defendant submits that the petitioner/defendant gathered material and because of the interim order granted by the trial Court he is not in a position to proceed further and thereby huge loss is being caused to him. A further submission has been made that the petitioner is prepared to give undertaking to pull down the structures in the event of the respondents/plaintiffs succeeding in the suit. It is also contended by the learned counsel that mentioning eastern boundary of the site covered under Ex.P1 original sale deed executed by the GPA holder of the petitioner/defendant is a mistake and there is no road existing as mentioned in Ex.P1 sale deed. Learned counsel refers the commissioner report, which finds place at page.19 of the material papers in support of his contention that 2nd plaintiff has no rastha towards eastern side as per his own documents. Much emphasis has been laid on para.5 of the commissioner report, which reads as hereunder: “5. That the plaintiff No.1 is having gate and road towards western side of his plot, the plaintiff No.2 is having a gate and road towards northern side and he also having a door towards western side, and the plaintiff No.3 is having a gate and road towards eastern side and the plaintiff No.2 is not having any windows or doors towards eastern side (i.e., the defendant’s side) and the plaintiff No.3 also not having any doors towards western side (.e., defendant’s side), and there is a house of J.Satheesh towards southern side of plaintiff No.1 and the defendant.” 7. The mother of the 1st plaintiff purchased Plot No.12 from the respondent/defendant through his GPA holder. Ex.P1 is the registered sale deed executed by the GPA holder of the defendant. Eastern boundary has been shown as the rastha. It is the contention of the petitioner/defendant that eastern boundary has been wrongly mentioned as rastha. The question whether it is wrongly mentioned in the sale deed or not is a matter to be adjudicated upon on full-fledged trial. The lower appellate Court has already issued a direction to the trial Court to dispose of the suit within six months. I hope by now, the trial Court must have framed the issues. Even the period stipulated by the lower appellate Court as on this day for disposal of the suit has been expired. Be that as it may, I do not find any valid ground to interfere with the status quo order passed by the trial Court as confirmed by the lower appellate Court. However, the learned Junior Civil Judge, Wanaparthy, is directed to dispose of the suit-O.S.No.44 of 2010 within two months from the date of receipt of a copy of this Order. 8. Accordingly, the Civil Revision Petition is dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:18th March, 2011. cs THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.4517 of 2010 Date:18th March, 2011