THE HON’BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE RAJA ELANGO CMA.MP.No.2126 of 2010 And CIVIL MISCELLANEOUS APPEAL No.871 of 2010 Between:- Smt.Parveen Asgar Mehdi and others … Appellants/plaintiffs and M/s.Clover Associates (P) Ltd., rep. By its Managing Director and others … Respondents/defendants This Court made the following: - THE HON’BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE RAJA ELANGO CMA.MP.No.2126 of 2010 And CIVIL MISCELLANEOUS APPEAL No.871 of 2010 COMMON ORDER: (Per the Hon’ble Sri Justice A. Gopal Reddy) When the interlocutory application is taken up for hearing, both the counsel argued the main appeal itself. The appellants/plaintiffs instituted the suit for mandatory injunction directing the respondents/defendants to remove the retaining wall constructed on the western side of the plaintiffs’ property, more fully shown and described in the plaint item B of the plaint plan and to deliver the same to the plaintiffs together with the site covered under the retaining wall, within the time fixed by the Court, failing which permit the plaintiffs to get the same removed through process of law and recover the costs thereof from the defendants. With the identical plea, I.A.No.1366 of 2006 was filed for temporary mandatory injunction. On dismissal of the said I.A., by II Additional District Judge, Visakhapatnam by the impugned order, dated 25.08.2010, the present appeal is filed. Plaintiffs, who are four in number, claims that their father viz., Asgar S.Mehdi purchased 4449 square yards of land in survey No.1011, block No.39, situated in R.K.Beach road, Visakhapatnam under registered sale deed, dated 19.08.1963, under document No.1846/1963. He gifted away 1074 square yards out of the said site in favour of Mr.Fazal Bhai, 1073 square yards in favour of Sadiq Bhai, 1073 sq.yards in favour of Mr.Sayed Bhai, 1073 sq.yards in favour of Munwar Bhai, leaving an extent of 150 square yards of site towards ingress and egress to the above extent of land gifted by him on 17.10.1974. While so, on 19.08.1985 the said Fazal Bhai gifted away his land to the 4th plaintiff, Sadiq Bhai gifted the land to the 3rd plaintiff, Munwar Bhai gifted his land to the 1st plaintiff and Mrs.Sayeda Bai gifted her land to the 2nd plaintiff and they are put in possession. A declaration under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (for short, “the Act”) was filed by Asgar Ali in which he was declared surplus land holder to an extent of 2063 square yards and on a notice under Section 10(5) of the Act, W.P.No.7939 of 1993 was filed before this Court by the plaintiffs. Pending the writ petition, when the Government issued G.O.Ms.No.454, 455 and 456, dated 29.07.2002, for regularising the excess vacant lands, the writ petition was disposed of granting liberty to the petitioners to avail the benefit under the said G.Os. On petitioners making representation for regularization of the excess land, the Government through G.O.Ms.No.1280, dated 02.09.2006, regularised the land in their favour in terms of G.O.Ms.No.455 directing the Urban Land Ceiling authorities to deliver sketch of the land allotted with measurements and boundaries. On delivery of the sketch purported to be delivered by the Urban Land Ceiling authorities showing that the said land was regularized in their favour, they have made some representation about the defect in preparing the sketch without notice to the parties. While so, the 2nd respondent/2nd defendant was allotted 2870 square metres (equivalent to 3432.49 square yards) under Section 23(4) of the Act read with G.O.Ms.No.455, on 29.07.2002 and after collecting Rs.5,54,000/- from the 2nd defendant, which includes the alleged extent of 1500 square yards claimed by the plaintiffs, the Government allotted the same to the 2nd defendant under G.O.Ms.No.424, dated 06.04.2006. Questioning the same two writ petitions W.P.Nos.2771 of 2009 and 9842 of 2008 were filed by the plaintiffs to declare the action of the Government in issuing G.O.Ms.No.493, dated 26.03.2008 in permitting the Urban Land Ceiling Authorities to collect differential amounts from the 7th and 8th respondents in G.O.Ms.No.256, dated 27.02.2006 and in G.O.Ms.No.424 dated 06.004.2006 and to declare the sketch prepared as illegal and arbitrary, respectively. This court by order, dated 01.04.2009, modified the interim orders granted earlier in W.P.Nos.2771 of 2009 and 9842 of 2008 stating that it shall be open to the contesting 7th and 8th respondents in W.P.No.2771 of 2009 to utilize the land that is allotted to them under G.O.Ms.No.424, dated 06.04.2006, without however in any way encroaching into the rights of the petitioners as regards the neighbouring lands. If any such encroachment takes place, it shall be open to the petitioners either to bring the same to the notice of the authorities concerned, or to file a suit. Taking clue from the above observation, petitioners appear to have filed the present suit for the above relief. The defendants, who contested I.A., filed counter stating that the plaint schedule item No.B site to the extent of 1500 square yards, which is in dispute, is their own land. The suit schedule property is part and parcel of the land to an extent of 3432.49 suare yards equivalent to 2870 square metres allotted by the Government to the 2nd defendant. When this Court permitted to utilize the land allotted to the 2nd respondent in G.O.Ms.No.424, dated 06.04.2006, they started construction in the year 2006. Plaintiff waited till August, 2009 and filed the above suit after taking clue from the observation made by this court while modifying the interim order. Once the suit itself is for relief of permanent injunction and for recovery of possession, mandatory injunction can be granted only to preserve the status quo as on the date of filing of the suit, but the status quo ante to the date of filing of the suit, cannot be restored. In view of the same, if the plaintiffs succeed in the suit, they can recover the plaint schedule property after demolishing the constructions so made. In such an event, the defendants may not be entitled to any equity for the constructions made after filing of the suit. Therefore, the impugned order passed by the trial court does not require any interference. The appeal is dismissed. The trial court shall make an endeavor to dispose of the suit uninfluenced by any of the observations made by it while disposing of the interlocutory applications or by this court in this appeal, as expeditiously as possible. There shall be no order as to costs. ______________________ A.GOPAL REDDY, J. ___________________ RAJA ELANGO, J. 25th October 2010 LMV