THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY C.R.P.No.3042 of 2007 Date:22.2.2010 Between: Smt. D.Pandurangamma, Wanaparthy, Mahabooobnagar District. Petitioner. And S. Hymavathi, Wanaparthy, Mahabooobnagar District and others. Respondents. THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY C.R.P.No.3042 of 2007 ORDER: This revision is directed against the order dated 22.3.2007 passed in CMA No.14 of 2006 on the file of the Senior Civil Judge, Wanaparthy, whereby and whereunder the learned Senior Civil Judge, Wanaparthy allowed the Civil Miscellaneous Appeal and consequently, set aside the order dated 29.8.2006 passed in I.A.No.42 of 2006 in O.S.No.25 of 2006 on the file of the Junior Civil Judge at Wanaparthy. Back ground facts, in a nutshell, leading to filing of this Miscellaneous Appeal by the plaintiffs in O.S.No.25 of 2006 are:- The appellants are the plaintiffs in O.S.No.25 of 2006 on the file of the Junior Civil Judge, Wanaparthy. They filed the suit for perpetual injunction restraining the defendants 1 to 3 from encroaching the road, which leads to Peerla Gutta to E- Seva center located on the western side of their house at Peerla Gutta, Wanaparthy. It is the case of the plaintiff that he is the owner and possessor of the house bearing No.39-31 located at Peerla Gutta of Wanaparthy town proper. A 20’ width road is adjacent to her house on western side. The defendants are trying to encroach the 20’ width rastha and therefore, sought for perpetual injunction against them. The petitioner/plaintiff also filed I.A.No.42 of 2006 under Order 39 Rules 1 and 2 CPC seeking temporary injunction restraining the defendants 1 to 3 from making constructions in 20’ width road. The defendants filed counter resisting the application. It is the plea of the defendants that they purchased Plot No.218, which is adjacent to the plaintiff’s house and there is no rastha as such, and, therefore, the plaintiff is not entitled to temporary injunction. On behalf of the plaintiff, 14 documents were marked as Exs.P1 to P14 and on behalf of the defendants 1 to 3, four documents were marked as Exs.R1 to R4. A Commissioner was appointed by the trial Court to make local inspection of the site in dispute. The Commissioner submitted his report. The learned Judge, on considering the material brought on record, and, on hearing the counsel appearing for the parties came to the conclusion that the plaintiff made out all the three essential ingredients for grant of temporary injunction and thereby proceeded to allow the application by order dated 29.8.2006. The defendants 1 to 3 filed C.M.A.No.14 of 2006 on the file of the Senior Civil Judge at Wanaparthy assailing the order dated 29.8.2006 passed in I.A.No.42 of 2006 in O.S.No.25 of 2006. The learned Senior Civil Judge, on a reappraisal of the material brought on record, came to the conclusion that the plaintiff failed to show the existence of 20’ width rastha on the western side of her house and thereby proceeded to allow the appeal setting aside the order passed by the trial Court and consequently, dismissed the I.A.No.42 of 2006 by order dated 22.3.2007. The order is assailed in this revision. Heard learned counsel appearing for the petitioner/plaintiff and learned counsel appearing for the respondents 1 to 3/defendants 1 to 3. The learned counsel appearing for the petitioner/plaintiff submits that the lower appellate Court has not correctly read the Commissioner’s report and thereby erred in upsetting the order granted by the lower Court. A further submission has been made even the document on which the defendants 1 to 3 placed reliance, the eastern boundary of the plots of the defendants 1 to 3 is open site and not the house of the petitioner/plaintiff. A further submission has been made that Ex.P6-Copy of deed of the agreement speaks about the existence of the suit rastha and the appellate Court has not correctly read the documents placed on record and thereby erred in upsetting the well reasoned order passed by the trial Court. Per contra, learned counsel appearing for the respondents 1 to 3/defendants 1 to 3 contends that the Commissioner’s report does not indicate the existence of any rastha to the west of the plaintiff’s house and it falsifies the version of the petitioner/plaintiff and in which case, the order passed by the Appellate Authority does not warrant interference by this Court in exercise of powers under Article 227 of the Constitution of India. Learned counsel refers the Commissioner’s Report along with the rough sketch. A copy of the Commissioner’s report has been placed on record. The dispute between the parties is with regard to the Rastha existing between the plaintiff’s house and the defendants’ plot. Even the documents of the defendants under which they claimed to have purchased the plot No.281, the eastern side has been shown as open site. During the course of the arguments, learned counsel appearing for the respondents 1 to 3/defendants 1 to 3 submits that the width of the open place is only 5 ½ feet and not 20’ as claimed by the petitioner/plaintiff. The fact remains that open place exists between the house of the petitioner/plaintiff and the plot purchased by the defendants. What is the width of open place is in dispute. The Commissioner measured the distance between the stones and bricks stocked by the defendants and the plaintiff’s house and arrived at its width as 12’. It can safely be concluded that 12’ site as on this day exists and whether the width of the rastha is 5 ½’, 12’ or 20’ is required to be arrived at by the trial Court on full pledged trial. As on this day 12’ width site exists between the petitioner/plaintiff’s house and the defendants’ site. The 12’ rastha existing as on this day shall be allowed to remain pending the trial of the suit. Accordingly, the revision is partly allowed granting temporary against the respondents 1 to 3/defendants 1 to 3 restraining them not to make any constructions in a open site adjacent to the petitioner/plaintiff’s house on the western side up to 12’ width. ______________________________________ JUSTICE B. SESHASAYANA REDDY Date:22.2.2010 mrb