THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.R.P.NOS.5598 AND 5685 OF 2009 COMMON ORDER Since both the revisions are connected and arise out of the same suit and the parties are also the same, they are being disposed of by this common order. 2. The petitioners herein are the plaintiffs. They filed the suit in O.S.No.43/2008 on the file of Senior Civil Judge, Kamareddy for declaration that they are the absolute joint owners of the suit land admeasuring an extent of 80 feet in length and 35 feet in width, equivalent to 2,800 sq. feet i.e., 311.11 sq. yards out of Sy.No.533, of dismantled house no.5-4-106 to 5-4- 119, with specific boundaries. In the said suit, the plaintiffs filed I.A.No.215/2008 for grant of temporary injunction and the defendant also filed I.A.No.48/2009 for grant of injunction, restraining the plaintiffs from proceeding with the alleged illegal construction of the suit land. By common order and decree dated 1.5.2009, the trial court dismissed the I.A.No.215/2008 filed by the plaintiffs for temporary injunction and allowed the I.A.No.48/2009 filed by the defendant and granted injunction, restraining the plaintiffs from proceeding with the construction. Aggrieved by the order and decree of the trial court, the plaintiffs filed appeals in C.M.A.Nos.8 and 9 of 2009 on the file of District Court, Nizamabad. By judgment and decree dated 5.10.2009, the lower appellate court dismissed the appeals. Hence, the present revisions filed by the plaintiffs. 3. The learned counsel for the petitioners contended that the petitioners have given an undertaking before the lower appellate court stating that they will not make any construction within the five feet from the existing wall towards the eastern boundary, which is the relief, sought for by the defendant. But the lower appellate court without considering the undertaking, and considering the notice dated 4.7.2009 issued by the Gram Panchayat, alleging violation of the sanctioned plan, refused to interfere with the impugned common order passed by the trial court. He contended that the Gram Panchayt is not a party to the suit and hence, the notice dated 4.7.2009, cannot be considered. He submitted that considering the undertaking given by the petitioners, they may be permitted to proceed with the construction on the land in dispute. 4. On the other hand, the learned counsel for the respondents supporting the impugned order, sought for dismissal of the revisions. 5. From the material on record, it could be seen that the grievance of the respondent is that the petitioner is proceeding with the construction in the suit land without leaving five feet from the existing wall towards the eastern boundary and hence this is causing hardship to him and therefore, he filed the I.A. During the pendency of the appeal before the lower appellate court, the petitioners have given an undertaking stating that no construction would be made within the five feet from the existing wall towards the eastern boundary. When the petitioners have given an undertaking that no construction would take place within the five feet from the existing wall towards the eastern boundary, which is the relief sought for by the defendant, the lower appellate court ought to have taken the said undertaking into consideration. 6. With regard to the notice issued by the Gram Panchayt dated 4.7.2009 is concerned, it is to be noticed that it is not a party to the suit and however, the present undertaking or any order to be passed in this suit will not bind them and they are always at liberty to proceed in accordance with law. 7. The lower appellate court observed that “Further it is open to the plaintiffs and defendants, to go ahead with the construction, if the defendant is satisfied that the plaintiffs are ready to leave 5 feet land from the common lane towards eastern side of the defendant.” When the parties are at loggerheads and approached the court, leaving the relief sought for by the plaintiffs to the satisfaction of the defendant, more particularly when they have given undertaken to the court, is not justified and the court below ought to made the said observation as the order of the court. 8. For the foregoing reasons and recording the undertaking given by the petitioners, the impugned orders of the courts below are set aside and the petitioners are permitted to proceed with the construction by leaving 5 feet land from the common lane towards eastern side of the defendants. The revisions are accordingly disposed of. No costs. AVS ---------------------------------- 07—10—2010