THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.279 of 2011 (Dated : 09-06-2011) Between: Adoori Mar Reddy S/o Inna Reddy and others …Petitioners A n d Bathike Mahabub S/o Narayana and others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.279 of 2011 ORDER: This Civil Revision Petition is directed against the order dated 31.12.2010 passed in I.A.No.377 of 2010 in O.S.No.10 of 2009 on the file of the Junior Civil Judge, at Nagarkurnool, whereby and whereunder, the learned Junior Civil Judge dismissed the application filed under Section 151 CPC seeking grant of police aid to enforce an order of temporary injunction, granted in I.A.No.32 of 2009. 2. The petitioners are the plaintiffs and whereas the respondents are the defendants in O.S.No.10 of 2009. The petitioners filed O.S.No.10 of 2009 for perpetual injunction against the defendants restraining them, their men, agents, servants, supporters from interfering with their peaceful possession and enjoyment of the petitioners over the suit schedule property. 3(a). It is the case of the petitioners/plaintiffs that the suit schedule property is their ancestral property. The defendants are strangers to the suit land and they are no way concerned with the family of the plaintiffs. The plaintiffs 1 and 2 dug one bore well about 20 years back and another bore well about 15 years back and obtained power supply to the motors fitted to the wells. The plaintiffs are cultivating the lands by drawing water from the bore wells. They also raised mango garden in part of the suit land. The defendants being adjacent landowners are trying to interfere with the peaceful possession and enjoyment of the petitioners/plaintiffs. On 23.01.2009, when the petitioners/plaintiffs are attending to cleaning operations in the lands, the defendants attempted to obstruct the plaintiffs and the plaintiffs with great difficulty resisted the acts of the defendants with the help of neighbouring landholders and others. 3(b). The petitioners/plaintiffs filed I.A.No.32 of 2009 under Order 39 Rules 1 and 2 CPC seeking temporary injunction pending disposal of the suit restraining the defendants from interfering with their peaceful possession and enjoyment over the suit schedule lands. The defendants filed counter affidavit resisting the application of the petitioners/plaintiffs. It is the case of the respondents-defendants that they are the owners and possessors of the lands in Sy.Nos.232 to 239 situated at Gunthakoduru village of Tadoor mandal and the said lands are adjacent to the suit schedule land. The petitioners/plaintiffs under the guise of ad-interim injunction are intending to occupy their land to an extent of Ac.3-05 gts. The boundaries stated in the plaint with regard to the suit schedule land are incorrect. There was some mediation between the parties and in pursuance of the mediation; a document dated 10.1.2009 came to be executed by both parties at Tadoor. The petitioners suppressed the said document and filed the suit with an intention to occupy the land in occupation of the respondents-defendants. 3(c ) During the course of enquiry of the temporary injunction application, the petitioners/plaintiffs filed I.A.No.455 of 2009 seeking appointment of an Advocate-commissioner. The Advocate- commissioner submitted a report along with map prepared by the Mandal Surveyor. The respondents-defendants filed their objections to the Commissioner’s report. The commissioner came to be examined as Rw.1. On behalf of the petitioners-plaintiffs, they marked 17 documents and on behalf of the respondents-defendants, they marked 8 documents to substantiate their respective pleadings. 4. The learned Junior Civil Judge, on considering the documents brought on record as well as the report of the Advocate Commissioner, came to the conclusion that the petitioners-plaintiffs made out a prima facie case and balance of convenience in their favour and thereby, proceeded to grant temporary injunction in favour of the petitioners- plaintiffs restraining the defendants and their men from interfering with their peaceful possession in respect of the suit schedule land pending disposal of the suit, by order dated 31.5.2010. For better understanding, I deem it appropriate to refer paras 11 to 13 of the order passed by the learned Junior Civil Judge in I.A.No.32 of 2009, which read as hereunder:- “11. Coming to the report of the Advocate-commissioner, it reveals that as per the report furnished by the Mandal Surveyor, who surveyed the land at the instance of the Advocate-Commissioner, the land in Sy.No.230 to an extent of Ac 15-26 gts was found in possession of the petitioners after measurement by the Surveyor with the help of the village map and tippan. The map annexed to the said report and issued by the Mandal Surveyor also shows that Ac.15-26 gts in Sy.No.230 is in possession of the petitioners and the survey numbers of the respondents as mentioned by them in their counter are adjacent to the said lands. The Advocate- commissioner was examined at length by the respondent to say that the warrant was not executed by him properly by measuring the lands bit-wise as shown in the plaint schedule and that he did not measure the petition schedule land with the assistance of the village map and tippan. Rw.1 admitted that on 10-1-10 the measurement was not done with the assistance of the cloth map. However, he stated that the Xerox copy of the cloth map was used in the measurement but the said Xerox copy is not filed by him along with the report. On his cross examination by the petitioners herein, the Advocate-commissioner admitted that the private surveyor engaged by the respondent also enquired the government surveyor about the measurement and the boundaries were fixed after such measurement. 12. For the purpose of discussing the present application, this Court is of the view that it is not necessary to go into the documents filed by the respondent since they are the pattadar pass books, CC of ROR and CC of pahanies and it is an admitted fact that the petition schedule lands are situated in Sy.No.230 while, the lands of the respondents situated in Sy.Nos.232 to 239. The only point to be decided in this application is whether the petitioners have, by showing wrong boundaries, encroached upon the lands of the respondents which are situated adjacent to the petition schedule lands. In this regard, the petitioners have through the evidence adduced by them, by way of Exs.A1 to A17 prima facie established that they have not encroached upon the lands of the respondents by showing wrong boundaries and also from the report furnished by the Advocate Commissioner. In such a case, it is for the respondents, who have taken the plea that the boundaries shown by the petitioners are wrong. In this regard, the respondents virtually failed to adduce any evidence except filing Exs.B1 to B8, from which, the boundaries of the lands of the respondents cannot be find out. Apart from that, it is the case of the respondents that an agreement was entered into between parties on 10-1-09 before the elders at Tandoor which, by itself, shows that the petitioners filed the present suit only with an intention to occupy an extent of Ac.3-05 gts belonging to the respondents. But the respondents failed to produce the said documents also. 13. Since the petitioners through Ex.A16 and Ex.A.17 and the other evidence adduced by them, have prima facie established that they are in possession of the petition schedule land and Exs.A9 to A13, the photographs with negatives show that the fencing was damaged, which supports the version of the petitioners and in view of Exs.A14 and A15, I hold that the petitioners are entitled to temporary injunction pending disposal of the suit and accordingly, this application is allowed”. 5. The petitioners-plaintiffs filed I.A.No.377 of 2010 under Section 151 CPC with a prayer to grant police aid. It was stated in the affidavit filed in support of the petition that despite the order of temporary injunction, the respondents-defendants trespassed into the land in occupation of the petitioners-plaintiffs and obstructed them from carrying out agricultural operations. It was also stated that the respondents-defendants abused the petitioners-plaintiffs in filthy language. The petitioners-plaintiffs filed a complaint against the respondents-defendants on 11.10.2010. Hence, the petitioners- plaintiffs sought for police aid. The respondents-defendants filed counter resisting the application. It was alleged in the counter that the petitioners-plaintiffs moved the application with an intention to occupy the land of respondents-defendants. 6. The learned Junior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the petitioners-plaintiffs are at liberty to pursue the application filed by them under Order 39 Rule 2-A CPC. With the above observation, the learned Junior Civil Judge dismissed the application filed by the petitioners-plaintiffs seeking police aid, by order dated 31.12.2010. Para (4) of the order needs to be noted and it is thus:- “On a perusal of the photographs filed today and the photographs filed by the petitioner earlier, this Court is unable to make out apparent difference to say that the possession of the petitioners has been disturbed. Further, as rightly contended by the learned counsel for the respondents, the photographs are not supported by negatives and the C.D filed by the petitioners cannot be viewed by this Court, as there is no mechanism available in this Court to view the same. Even assuming for a while that the respondents have trespassed into the lands of the petitioners violating the injunction orders of this Court, the petitioners themselves stated that they have filed an application under Order 39 Rule 2(A) CPC. In such a case, the real facts will come out during the course of enquiry of the said application and in the absence of any evidence let in by the petitioners in the present application; this Court is unable to say that the respondents have trespassed into the lands of the petitioners. Further, the petitioners also stated that the private complaint filed by them has been referred to the police concerned and in case of further breach, if any by the respondents, the petitioners can pursue the matter with the police as the police cannot be expected to aid the petitioners to conduct their agricultural operations, which may prolong for months together and the police will be busy with their public duties and by directing the police to give police aid in each and every individual case, it will be great hardship to the police also. If the contention of the petitioners that they will be put to irreparable loss is to be considered, this Court already granted injunction order and the petitioners also filed application u/O 39Rule 2(A) CPC, and in case of the petitioners successfully establishing the violation of the respondents, they can seek compensation.” Hence, this revision. 7. Notice before admission came to be ordered on 04.2.2011. The respondents entered appearance through a counsel. 8. Heard learned counsel appearing for the petitioners-plaintiffs and learned counsel appearing for the respondents-defendants. 9. Learned counsel appearing for the petitioners-plaintiffs submits that as long as the order of temporary injunction passed by the trial Court is in force, the respondents-defendants cannot interfere with the possession of the petitioners over the land , and the trial Court has to ensure that the order passed by it is not violated by granting police aid. A further submission has been made that the availability of remedy under Order 39 Rule 2-A CPC is not a bar for the petitioners- plaintiffs to file an application under Section 151 CPC seeking police aid. In support of her submissions, learned counsel placed reliance on the judgment of this Court in N.K.Leasing Constructions Ltd., Hyderabad v. Sugan Chand Sankla[1]. 10. Learned counsel appearing for the respondents submits that the petitioners, under the guise of temporary injunction, are trying to occupy the land owned by the respondents and that the petitioners moved the application for police aid with a mala fide intention to encroach upon the land of the respondents. He would also submit that the petitioners are owners of Ac.15-26 guntas in Sy.No.230 and the respondents are no way concerned with the land owned by the petitioners and if police aid is granted, there is likelihood of the petitioners encroaching on the land owned by the respondents so as to claim that the total extent of land owned by them in Sy.No.230 is Ac.18-31 gts. In nutshell, his contention is the extent of Survey No.230 is only Ac.15-26 guntas as per the records. But the petitioners claim land to an extent of Ac.18-31 guntas in Sy.No.230. Learned counsel states that the respondents do not have any claim over the land admeasuring Ac.15-26 guntas in Sy.No.230 owned by the petitioners and the only apprehension of the respondents is that the petitioners are likely to encroach upon the adjacent land belonging to the respondents with police aid. In support of his submissions, learned counsel placed reliance on the judgment of this Court in Polavarapu Nagamani v. Parchuri Koteshwara Rao[2]. 11. A Division Bench of this Court examined the matter with regard to grant of police aid in preventing violation of temporary injunction. In Polavarapu Nagaminai’s case (2nd supra), after discussing the matter at length and examining the purport of the relevant provisions of law and the precedents, the Division Bench held inter alia, as under: “Para 24: … The Courts in India have repeatedly held that the police have no role in civil adjudication, and therefore, the Courts should be very very cautious and vigilant not to introduce police intervention in civil adjudication in indirect manner at the instance of a clever and resourceful plaintiffs. In view of this, we direct all the civil courts in the State of Andhra Pradesh to exercise abundant caution in dealing with interlocutory applications filed by the party obtaining an order of injunction seeking police protection. For the guidance of all the Civil Courts, we hold and lay down as under: (i) When the allegations are made by the party obtaining an order of injunction, that the said order has been violated, an application seeking police protection would not lie. The aggrieved party has to necessarily file execution petition under Order XXI Rule 32 or an application under Order XXXIX Rule 2A of CPC seeking attachment and/or arrest of the violator for contempt of the Court. (ii) When a petition is filed seeking police protection, whether or not to exercise of power under Section 94(e) or Section 151 CPC, the facts alleged or pleaded, an order for police protection cannot be passed in a routine manner. (iii) If an application is filed by the person obtaining ad interim injunction alleging that there is a threat of breach disobedience or violation of the order of injunction, subject to proof, the Court has power to order police protection imposing necessary conditions not to interfere with the life and liberty, and rights of the opposite party. (iv) The standard of proof required in the case of threat of disobedience of injunction or alleged breach, disobedience or violation of an order of injunction should be very high and it should be in between the standard of beyond reasonable doubt and a standard of balance on probabilities. Be it noted, as held by the Supreme Court in Chottu Ram v. Urvashi Gulati, (2001) 7 SCC 530 and Anil Ratnan Sarkar v. Hirak Ghosh, (2002) 4 SCC 21, in all cases of contempt the plea should be proved applying the very high standard of proof and not mere affidavits or self- serving statements of the party seeking the intervention of the Court”. According to guideline No.1, an application for police aid would not at all lie for enforcing an order of temporary injunction, and the only alternative is, to take recourse to the remedy under Rule 32 of Order XXI, or Rule 2-A of Order XXXIXCPC. However, as per the second one, such application can be filed, but the Courts must not pass orders on such applications, as a matter of course. So far as the guideline No.3 is concerned, in a way, it has widened the scope of the existing law. Hitherto, an application for police protection was maintainable only in support of an order of temporary injunction, which is made absolute. The Division Bench, however, made it possible to seek police protection in support of an ad interim injunction also. However, a rider was added to the effect that an order in this regard can be passed subject to proof. The standard of proof which is necessary for this purpose is mentioned in the fourth guideline. In R.Audemma v. P.Narasimham, AIR 1971 AP 53, a Division Bench of this Court held that the exercise of power by a civil Court under Section 151 CPC, to grant police aid, for enforcement of orders passed by the Civil Courts , is necessary and it would be within the framework of law. 12. Even as per the judgment of this Court in Polavarapu Nagamani ‘s case, there is no absolute bar in granting police aid for preventing violation of temporary injunction. An order of police protection cannot be passed in a routine manner. 13. Keeping in view the proposition of law laid down in the above- referred cases, I may now examine whether the trial Court is justified in refusing to grant police aid to the petitioner for preventing the violation of order of temporary injunction granted in I.A.No.32 of 2009 in O.S.No.10 of 2009. 14. Indisputably, the respondents did not choose to challenge the order passed in I.A.No.32 of 2009, whereby and whereunder, temporary injunction has been granted in favour of the petitioner restraining the respondents from interfering with their peaceful possession in respect of the suit schedule property. The total extent of the suit schedule property is stated to be Ac.15-26 guntas. The suit schedule property as described in the plaints schedule is as follows: SCHEDULE OF PROPERTY “The land bearing Sy.No.230/A0-10 gts and 230/AA extent Ac.4-00 gts., and Sy.No.230/AA extent of Ac.3-05 gts., of plaintiff No.1, and Sy.No.230/A, ext. Ac.1-00 and Sy.No.230/E ext. Ac.3-05 gts. And 230/EE Ac.3-06 gts., of plaintiff No.2, Sy.No.230/AA Ext.Ac.1-00 gts.,of plaintiff No.3 situated at Gunthakodur sivar of Tadoor mandal all located like one plot situated at Gunthakodur sivar of Tadoor mandal and bounded as East : Lands in Sy.No.252, 232, 234, 236, 237, 229 of Gunthakodur village. West : Land of Joharnis Reddy and Sleeva Reddy, Baddula Ramulu of Yadireddypally sivar. North : Land of Anand Reddy after that Ramanna Cheruvu of Gunthakodur village. South : Land in Sy.No.221of Gunthakodur village.” 15. In the affidavit filed in support of the application seeking police aid, it is stated that the respondents trespassed into the land of the petitioners and obstructed them from carrying agricultural works and thereby violating the order of injunction passed in I.A.No. 32 of 2009 dated 31.5.2010. The learned Junior Civil Judge, after going through the photographs placed on record by the petitioners, expressed his inability to make out apparent difference to say that the possession of the petitioners has been disturbed. What is sought for by the petitioners is grant of police aid, so as to prevent the respondents from violating the order of temporary injunction. 16. In the counter filed by the respondents in the revision, they have categorically stated that they are not concerned with Ac.15-26 guntas in Sy.No.230. Para (6) of the counter affidavit filed in C.R.P.M.P.No.391 of 2011 needs to be noted and it is thus: “6. I submit that petitioners suppressed the facts filed the prevent revision petition before this Hon’ble Court. I submit at the outset denied the petitioners allegations and submits that the petitioners are making hectic efforts to grab our land in Sy.No.231 to 235 under the guise of injunction orders. I submit that the petitioners are the absolute owners and possessors of the land in Sy.No.230 to an extent of Ac.15-26as per the records but the petitioners claiming the land to an extent of Ac.18-31 guntas, which is not available on ground level. I submit that we have no claim in the land in Sy.No.230 but the petitioners being influential persons in locality tried to grab our land as such we resisted the illegal acts of the petitioners. I submit that our land Sy.No.231 to 235 are adjoining lands of the petitioners lands Sy.No.230. I submit that if the petitioners are confined to only Sy.No.230 we have no dispute with the petitioners but the petitioner by getting police aid wants to grab our land as such police aid cannot be granted without resolving the boundary dispute. I submit that petitioners have filed the injunction suit in hasty manner approaching the Survey and land settlement authorities to resolve the boundary dispute. I submit that the Junior Civil Judge, Nagarkurnool, rightly dismissed the petition. 17. A reading of the counter indicates that the respondents are not claiming any land in Survey No.230. The land claimed by the respondents is in Sy.Nos.231 to 235. The police aid has been sought for by the petitioners in respect of Sy.No.230 admeasuring Ac.15-26 gts. The petitioners have specifically stated in the affidavit filed in support of the police protection petition that the respondents attempted to violate the temporary injunction order. 18. In the given facts and circumstances, I find that the petitioners made out valid ground for grant of police aid in respect of the suit schedule property admeasuring Ac. 15-26 gunts. The trial Court proceeded to dismiss the application on the ground that the petitioners filed application under Order 39 Rule 2 A CPC. Mere pendency of an application under Order 39 Rule 2 A CPC is not a bar to move an application seeking police aid. 19. In the result, the Civil Revision Petition is allowed setting aside the order dated 31.12.2010 passed in I.A.No.377 of 2010 in O.S.No.10 of 2009 on the file of Junior Civil Judge, at Nagarkurnool. Consequently, I.A.No.377 of 2010 stands allowed. No order as to costs. _____________________ B.SESHASAYANA REDDY, J Dt.09-06-2011 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.279 of 2011 (Dated : 09-06-2011) [1] 2010(6) ALD 62 [2] 2010 (2) ALD 41 (D.B)