Dorandula Ramakrishna Reddy and others vs Chinthalapalle Rami Reddy

Seetharam Reddy

This Civil Revision Petition aroses out of an order passed in I.A. No. 852/70 in O. S. No. 242/77 made under Order 26 Rule 9 and sec. 151 of the CPC directing the Commissioner appointed earlier in I. A. No. 663/77 for inspection of the suit locality to carry out the work suggested in his report to restore the status quo as it existed on the date of his first inspection at the expense of the plaintiff. Plaintiff who is the respondent herein filed a suit inter alia for permanent injunction restraining the defendants from trespassing on the plaint schedule land and from interfering with the plaintiff''s peaceful possession and enjoyment of the same in any manner whatsoever. The plaint schedule property which is on extent of about Ac. 0.04 cents of land, was originally a part of larger extent of Ac. 2. 36 cents in S. No. 960 of the Atmakur village belonging to Sreenivasa Lakshmidevamma. Lakshmi Devamma sold in 1974 under two different sale deeds to 5 persons jointly, who constructed a Cinema shall over the said land excluding Ac. 0. 04 cents from the said extent. This extent of Ac. 0. 94 cent was sold to plaintiff on 11.10.1977, After taking possession the plaintiff got erected a compound wall with rough stones to a height of 3 feet all along the course of ABCD channel on his side as shown in the plaint sketch. It is further alleged in the plaint that the defendants 1 and 2 were advised that having regard to the shape of the land in S. No. 971, the contemplated constitution of Cinema hall would not be perfect, unless they also acquire the plaint schedule land and annex the same after shifring the ABCD Channel from its present position to further east and having learnt that the land was sold to the plaintiff, they became desparate and felt aggrieved against the plaintiff as well as venders. So, with the help of defendants 3 to 6 and others they thought of annexing the plaint schedule land by force and when they were actually demolishing the compound wall so constructed and the stones being thrown into the ABCD channel with a view to close it up and also noticing that some of them have engaged in excavating a new channel along side the said wall in the plaint schedule property and when their protests were of no avail, they have rushed to the Court and filed the said sun for permanent injunction. Defendants while generally denying the allegations stated that the irrigation channel as shown in the sketch as ABCD is absolutely false, though it is true that it is an ancient channel. It was contended that Lakshmidevamma the original vendor was in enjoyment of S. No. 960 extended upto the western ridge of the alleged ABCD channel and the land in S, No. 971 was upto the other side of the ridge of the alleged ABCD channel and that the alleged ABCD channel constituted the boundary of both the lands were also false and the allegations made are invented for the purpose of the suit. The plaintiff held I. A. No. 662/77 for a temporary injunction restraining the respondents from interfering with his possession and enjoyment of the suit schedule land and also filed I. A. No. 662/77 for the appointment of a Commissioner for a local inspection. The interim orders passed in I. A. No. 663/77 directing the status quo of the suit locality and the old irrigation channel and the newly dug channel were allowed to exist until further orders. Thereafter the Commissioner''s report was filed, wherein it is stated that having received the Commission Warrant on 26.10.77 at about 4. 30 P. M., he inspected the suit locality on the same date at about 5.00 P. M. in the presence of the plaintiff and his advocate after informing the defendants advocate. He had a view of the suit locality regarding the physical features and postponed his inspection proper to 29.10.1977 evening and gave notice. The defendant''s advocate endorsed on the nonce for postponement till the next day. Therefore, be inspected the suit locality in the afternoon of 30.10.1977 in the presence of plaintiff and his advocate. Nether the defendant''s nor their advocate were present at that time. But the defendants'' advocate is said to have given a work memo. At the close of the inspection defendants 1 and 2 went and stated that they have nothing to pay.

In the Commissioner''s plan the marked portion Map is the Srinivasa Mahal proper. A vacant site is shown to be in front of it and a wall from ''X'' to ''Y'' to a height of about 4 feet from the ground level. It is further stated in the report as under:

I was told by the plaintiff that the suit site proper on eastern side commences from ''C'' to ''D'' along the western compound wall of the Srinivasa Mahal and extends unto AB i.e. the eastern ridge of the irrigation channel as shown in red ink dots. Hence the suit site proper according to plaintiff is ''CD'' as marked in my plan.........The eastern ridge of the irrigation channel AB shown in red ink dots was damaged recently appeared from the crowbar marks therein. There are new stones thrown in the said irrigation channel and in its neighbourhood. Plaintiff told me that he has raised a compound wall to a height of 3'' along ''A'' to ''B'' which was recently demolished. Except point (1) raised in the work memo given on behalf of the defendants, the remaining two points are covered by this report. Unless I take the assistance of Karnam, I cannot locate in which survey number the suit land lies exactly.

In the supplemental report filed by the Commissioner it has been stated :

S. No. 971 lies to the west of S No. 960. ABCD marked in this plan which is entirely in S. No. 960 is AC. 0.02 � cents. have given details of measurements in my plan attached to this report........RFAB and DC marked in the 2nd plan is Ac. 0.001 1/2 cents. Plaintiff represented to me that his site extends further to the west of AD upto old channel (Irrigation channel marked in my first plan). But it is very difficult to measure that extent on account of the existence of the zig zog nature the old channel and the land calculate its extent. That is what the Surveyor expressed also.

In the 3rd report of the Commissioner, dated 8-2-1978 it is stated :

In obedience to the Commission Warrant which I received on 25-1-1978 (I) visited the suit locality on 4-2-1978 at about 4. P.M., in the, presence of plaintiff after giving order notice to both the advocates on 31-3-1978. The irrigation channel marked ''AB'' in my previous plan was completely closed with stones and earth. Now there is no channel at all along AB. The existing stone and earth on the irrigation channel ''AB'' have to be removed to a width of 8 ft. (On the surface) to a width of 4 ft. at the bottom and depth of 4th to restore the position as existed as on 26-10-1977, the date of my first inspection. As regards new channel maked ''CD'' in my first report and plan it is now unifomally 3 ft. wide and 3 ft. deep water is flowing in it. On my previous visit on 26-10-1977 the said channel was from point ''C'' to a distance of 70'' to the North 3 wide and 2'' deep. From ''D'' to ''M'' the channel was in fact even on my inspection on 4-2-1978. Therefore in order to restore the Status quo ''CD'' channel should be closed to a depth of 2� ft. in the distance of 60'' and 1'' to a distance of 70 ft. to the South of it.

On 19-11-1977 the injunction petition in I.A. No. 662/77 was heard and orders were reserved and orders were finally pronounced on 5-12-1977, wherein it was directed that the defendants are restrained from closing down the old irrigation channel shown as ''CD'' in the plaint plan which is at some distance from the compound wall of the Cinema hall or impair its utility or change its course of flow of water pending the suit. It was further directed that the defendants are also restrained from excavating the half dug new channel along the western compound wall of the Cinema Hall. When the matter stood thus I.A. No. 852/77 in which the impugned order has been passed, was filed alleging that during the period between the final hearing of the petitioner for interim orders of injunction 19-11-1977 and the pronouncement of orders on 5 12-1977 the respondents (Petitioners hereing have unlawfully dumped into the old channel the earth that they have carted along the same and more or less filled up and closed up the channel with the said earth. In addition the defendants have also high handedly further excavated the half dug new channel along side the compound wall of the Cinema Hall, in an attempt to replace the old channel by a new channel with a view to create new boundary and to subvert the status quo in violation of the Court orders which had earlier directed the status quo. Therefore the prayer in the said I.A.No.852/77 was (i) to have the half excavated channel along side the Srinivasa Mahal Cinema compound wall referred in the plaint plan and in the Commissioner''s reports and plan be restored to the condition in which it was at the time of his inspection and to have the subsequently dug portion filled up; (ii) to have the old irrigation channel referred to in the plaint plan and in the Commissioner''s plans restored by removing the earth and stones newly dumped into the same, subsequent to his inspection and file his report into Court". It is under these circumstances, the impugned order has been passed. Thus, "in the result the Commissioner is directed to carry out the work suggested in his report to restore status quo as it existed on the date of his first inspection and he shall get it done at the expense of the petitioner".

Sri Seetha Ramayya the learned counsel for the petitioners raised the following contentions. (1) The lower Court''s order is nothing but mandatory injunction and it is not competent for the court to issue such order, as the relief is beyond the scope of the pleadings wherein the plaintiff prayed for only permanent injunction restraining the defendants from interfering with the possession of the land. (2) Unless the court came to a finding on the basis of the report of the Commissioner, that the position as obtained on 30-10-1977 was the same on 26-10-1977 the Status Quo to be maintained as on 26-10-1977 cannot be ordered. (3) The report of the Commissioner cannot be taken cognizance of, unless the Commissioner deposed to the fact that the wall was in existence as found by him. (4) Though the application was filed under Order 26 Rule 9 and Section 151 of the Civil Procedure Code, the order which has been pissed is deemed to be one under Order 39 Rule 2 as it is mandatory injunction and the same is appealable order under Order 43 Rule 1. (5) The relief of mandatory injunction could not have been sought for without amending the plaint and therefore the Court exceeded its jurisdiction in passing the impugned order.

Sri Krishna Reddy the learned counsel for the respondent submitted that the impugned order is only consequential to the one passed on 4-11-1977 in I.A.No. 662/77. In the said I.A. the court has ordered for the status quo to be maintained as it did exist at that time, since there was an infraction of the said order and direction, the order now passed is nothing but restoration of the same. Secondly, he also submitted that the actual order which was passed on 12-1-1977 to which reference also is made in the impugned order had become final wherein the position vis-a-vis the suit land boundaries, the old channel and the new excavation had all been shown by the Commissioner and the same remained unchallenged by the petitioners herein. As they failed to agitate either before the said Court or by the taking the matter in revision before this honourable Court, they are now procluded from raising any objection with regard to the possession in this Civil Revision Petition.

In order to appreciate the rival contentions the position may be nutshellised. The suit was filed for permanent injunction restraining the defendants from interfering with the possession of the suit schedule land and also the plaintiff filed interlocutory applications for temporary injunction and for the appointment of a Commissioner to make a local inspection and to report. On the basis of the report so made, interim injunction was ordered maintaining the status quo. Thereafter apprehending the violation of the said status quo the plaintiff sought the assistance of the Court for the maintainance of the said status quo, which before ordering, called for again the said Commissioner''s report and eventually having found from the Commissioner''s report that there has been a violation of the direction, reiterated or the maintenance of the status quo which was earlier ordered.

On a consepectus of aventus it is incomprehensible to appreciate the contentions put forward by learned counsel for the petitioner. The eventual impugned order that has been passed is sought to be construed as the one in the nature of mandatory injunction and consequently it is contended that his mandatory injunction could not have been issued for which there is no relief at all prayed for by way of any amendment by the plaintiff and therefore, it is submitted that the lower court exceeded its jurisdiction while issuing the impugned order. This submission of the learned counsel has no substance. It is not as though any issue is framed on the basis of any extraneous material. It has not been pleaded by the plaintiff wherein such contentions could be raised. Pending the suit, in the interlocutory matters without final adjudication the steps that have been taken cannot be equated to with the final adjudication. What has been directed to is to restore the stauts quo as it existed which was ordered earlier and regarding which no objection or grievance was raised. In other words what actually the Court is doing, is to see that its previous order is adhered to and maintained.

The learned counsel for the petitioner relied on a decision in Abdul Rahman Saheb vs. Ganapathi Bhatta I. L. R. (23) Mad 517. This case arose out of a proceeding u/s 43 of the Guardians and Wards Act. A petition was filed for setting aside an order passed on 14th July 1978 appointing the guardians of certain minors. In the said order the District Judge purported to issue an injunction and under Sec. 492 of the CPC for the attachment of the estate of the minors and to appoint a receiver to manage the estate. In making the said order the Judge misconceived his powers u/s 43 of the Act, as that section provides that when an order made under Sub section (1) is disobeyed, the order may be enforced in the same manner as an injunction u/s 492 and 493 of the Civil Procedure Code. The section does not confer jurisdiction to issue an injunction, but gives jurisdiction in the case of disobedience to proceed in the same manner as if an injunction had been issued u/s 492 of the CPC and the injunction had been disobeyed. The order appointing a receiver appears to have been made by the Judge as consequential on the order for an injunction. Both these orders were made without jurisdiction. In those circumstances, the contention before the High Court in a Division Bench was that the Judge must be taken to have acted under the Guardians and Wards Act, and that no appeal being provided by that Act in the case of such an order an appeal did not lie. Repelling the contention the High Court held that the learned Judge purported to act u/s 492 of the CPC as regards the issue of the an injunction and apparently u/s 503 of the CPC as regards the appointment of a receiver. Orders made under either of those sections are appealable under Civil Procedure Code. The fact that the District Judge had no power in this case to pass an order under these sections did not bar the High Court from treating the order as having been passed thereunder for the purpose of entertaining an appeal against the order. As there was no provision of law under which the judge could pass an order attaching the property or appointing a receiver.

There cannot be any quarrel with regard to the ratio laid down in the aforesaid decision. The said decision has no application to the case before us. In the case before us, it is not as though the Court had no jurisdiction to pass the impugned order which was made under Order 26 Rule 9 and Section 151 of the Civil Procedure Code. Hence it has no application to the case on hand.

In fact the interference with the order becomes apparent by the contentions which is made by the defendants in their counter filed in I.A.No. 850/77 as under: The petitioner states that the respondents had modelled with the curved channel and the unfinished channel. These respondents state that they never interfered. It is the ryots under the ayacut of the said channel who have done the alleged mischief. This manifestly shows that there has certainly been interference with the orders made earlier. A complainant is also sought to be made with reference to the impugned order saying that in the report filed by the Commissioner dated 10-2-1978, one of the points made out by the Commissioner as per the impugned order is as under:

The irrigation channel marked AB in his previous plan was completely closed with stones and earth and there is no channel at all along AB. The Commissioner states that to restore the position as it existed on 26-10-1977 the date of the first inspection, the stones and earth in the irrigation channeal AB had to be removed. ... ...

Restoration of the position as it existed on 26.10.1977, states the learned counsel for the petitioner, is not the same as the position is on 30.10.1977. There was no inspection and no report was made with reference to 26.10.1977 and therefore the question of restoration of status quo as on 26.10.1977 did not arise. In the hypothetical analysis sought to be made by the learned counsel for the petitioner it is forgotten that though eventually the inspection was on 30.10.1977, but in the very first report, as stated by me in the narrative of events earlier, it has been stated by the Commissioner that he visited the spot at 5. P. M., on 26.10.1977, and had the view of the physical features, of the suit. But later it was postponed to 29.10.1977 and thereafter to 30.10.1977. Therefore, the position is with reference to the inspection report as is made out by the Commissioner, the status quo of which was ordered to be maintained. Hence there is no foundation in the submission of the learned counsel for the petitioner. I also see sufficient force in the submission of the learned counsel for the respondent that the impugned order is only a consequential one to the order passed on 4.11.1977 and in fact it bad become final, which remained unchallenged either before the very Court or under revision. From the foregoing it is clear that the contentions raised by the learned counsel for the petitioners, are untenable and devoid of merit. The impugned order cannot be termed as a mandatory injunction and therefore it was well within the jurisdiction of the lower court to pass the orders under Order 26 Rule 9 and Section 151 of the CPC and therefore there is no material irregularity or any error of jurisdiction in passing the impugned order.

Sri Seetha Ramayya the learned counsel for the petitioners requests that since the order is one in the nature of mandatory injunction which is an appealable order, some time may be granted so that the Civil Revision Petition may be allowed to be withdrawn and the petitioners may be in a position to file an appeal against the said older and in the meantime the order under revision be stayed. This request cannot be acceded to in view of the orders passed herein above holding that the impugned order is not the one to be termed as mandatory injunction so as to give rise to an appeal to be availed of, by the petitioners herein. For all these reasons, I have no hesitation in holding that the order under revision is neither erroneous nor in excess of jurisdiction warranting any interference. The Civil Revision Petition is dismissed without costs.