Annapureddy Hari Kumar Reddy and Another vs Basu Subba Reddy

K.B. Siddappa, J.—This Revision is filed against the Judgment passed in C.M.A.No. 72/95 on the file of Subordinate Judge, Gurazala.

The Suit is filed for mandatory injunction. The plaintiffs also filed I. A.No.817/95 for grant of temporary injunction. Ex-parte ad-interim injunction was granted on 11-9-1995 against defendants 1 and 2, Defendant No. 2 filed I.A.No. 844/95 for vacating the injunction granted. After hearing both the sides and considering the documents available on record, I.A.No. 844/95 was dismissed and the interim injunction granted was made absolute. Aggrieved by the said order in I.A.No. 844/95, defendant No. 2 preferred G.M.A.No. 29/ 95 in the Court of Subordinate Judge, Narsaraopet and it was transferred to Sub-Court, Gurazala and it was renumbered as C.M.A.No. 72/95

The learned Subordinate Judge, considering the various contentions and also the documents available on record, allowed the Appeal by the judgment dt. 28-6-1995.

Aggrieved by the said Judgment the present Revision is filed.

At the time of admission of the Revision, Status-quo as on 30-7-1996 was granted by this Court.

The learned counsel appearing for the Revision petitioners submitted that the order dated 10-10-1995 of District Munsif, making the injunction absolute, is not agitated and it has become final. As a matter of fact, subsequently, an unnumbered C.M.A. is filed With a condone delay application and both are pending consideration on the file of Subordinate Judge.

When the older of making the injunction absolute is still subsisting, considering the order in I.A.No. 844/95 is contradictory. Allowing the C.M.A. also is in conflict with the order of the District Munsif dated 10-10-1995. On this ground alone the Civil Revision Petition has to be allowed.

He further submitted that the documents on either side were filed under Order 41 Rule 27 CPC. No petition was filed and the petition was not allowed. However, in spite of representation by the counsel for appellant that the documents need not be looked into, the learned Subordinate Judge perused the documents filed on either side and held that the pattedar pass book filed by the appellant Shows the possession of item No.2 which is one of the scheduled lands in the suit. He also found that the respondents in the Appeal did not file any pass book. This, according to the Counsel, is not the proper way to deal with the documents filed in the appeal. He further submitted mat the admissions made in O.S.No. 101/87 will not come in the way of his client to show his possession in the present Suit. For all these reasons the C.R.P. is liable to be allowed, etc.

I am unable to agree with these contentions. Ad-interim injunction granted in L.A. No. 817/95 was considered when defendant No. 2 filed I.A. No. 844/95 to vacate the same. When the District Munsif dismissed the vacate stay application, he made the ad-interim injunction absolute, i.e., it is a consequential order. The relative merits of the parties were considered in I.A.No. 844/95, against which order, C.M.A.No. 72/95 was filed. The learned Subordinate Judge considered the merits of the case and allowed the C.M.A. The Order dated 10-10-1995 of the District Munsif has no independent status. When the C.M.A. was allowed, it also merges with the Judgment in C.M.A. dated 28-6-1996. Therefore, there is no question of arising Conflicting decisions. Of course, the C.M.A. filed against the order making the injunction absolute, dated 10-10-1995, is pending. The result of that will follow the result of the C.R.P. Therefore, there is no question of any conflict.

It is true that the documents filed in the appeal were not properly dealt with by the learned Subordinate Judge. He ought to have considered the petition on merits and after allowing the petition only the documents filed along with it can be considered. The learned Subordinate Judge found the possession of the respondent herein in respect of item No. 2 in the pattedar pass book. The Revision Petitioners did not file any such pass book. In the circumstances, much reliance cannot be placed on this finding that the possession of the respondent herein was found in respect of item No. 2.

The main contention of the learned counsel for the respondent is that the Revision Petitioners filed O.S.No. 101/87 for partition etc., and that he himself specifically pleaded that defendant No. 2 in this Suit, who is defendant No. 1 in that suit, is in possession of item No. 2 of the schedule of property and revision petitioners claimed mesne profits also. The lower Court considered this aspect and held that the Revision Petitioners cannot take a contradictory stand. O.S.No. 101/87 is a previous suit and it was pending when the I.As. were considered by the District Munsif. When a specific stand is taken in the pleadings, that certainly binds the party in a subsequent suit in respect of possession in the LA. The respondent herein can certainly take advantage of the pleadings in O.S.No. 101/87. The lower appellate court rightly appreciated this fact and held that his possession was not proved by the Revision Petitioners by the date of filing of the suit. On the other hand he admitted the possession, -of respondent herein.

Further, the documents filed on behalf of the Revision Petitioners were also considered. There is no specific document indicating the possession of Revision Petitioners. On this aspect also, the Revision Petitioners failed to prove prima facie possession in respect of item No. 2 of schedule of property.

For all these reasons the Judgment of the lower appellate Court cannot be assailed.

There are no merits in the Civil Revision Petition and it is accordingly dismissed, and in the circumstances without costs.