KORIVI MALLAIAH Vs. P NARENDER

JUDGEMENT

(1.) Deceased first revision petitioner i.e., husband of second revision petitioner and father of third revision petitioner, filed O.S. No.iOl of 1993 seeking a decree of perpetual injunction restraining the respondents from interfering with his peaceful possession and enjoyment of the land in Sy.No. 1119 of Karimnagar Town, which was decreed. Alleging that Respondents 1 and 2, in violation of the said orders of injunction, had constructed a compound wall and a shed in the property covered by the aforesaid O.S. No.101 of 1993, Revision Petitioners 2 and 3, after the death of the first revision petitioner, filed E.P. No.42 of 2000 for removal of those constructions alleging as follows:

(2.) In support of the case of the revision petitioners, only third revision petitioner was examined as P.W.I but no documentary evidence was adduced. On behalf of respondents, only first respondent was examined as R.W.I and Exs.B.1 to B.11 were marked. The Executing Court holding that Revision Petitioners 2 and 3 by claiming the buildings etc., constructed by Chandrakala and Nirmala in their plots in Sy.No.1131 covered by O.S. Nos.1130 and 1132 of 1993 as the structures raised in the land covered by O.S. No.101 of 1993 and that they had failed to establish that respondents violated the injunction passed in the suit, dismissed E.P. No.42 of 2000 by the order under revision. Hence, this revision by Revision Petitioners 2 and 3.

(3.) The main contention of the learned Counsel for the revision petitioners is that the Court below was in error in dismissing the execution petition without first considering E.A. No.119 of 2001 filed by the revision petitioners for appointment of a Commissioner to demarcate the land in Sy.Nos.1119 and 1131 of Karimnagar, and was in error in observing that revision petitioners did not adduce evidence in support of their case and contends that in view of the ratio in Kilari Pedda Appalaswamy v. Bhagivilli Venkataswamy, 1976 0 ALT 61 (NRC), even in case of a prohibitory injunction the Court has ample power to order demolition of the structures raised in violation of a prohibitory injunction and so the order under revision is liable to be set aside and the matter has to be remitted to the Executing Court for deciding the matter afresh after appointing a Commissioner to find out whether the structures are in the land covered by O.S. No.101 of 1993 or in the plots allegedly purchased by Nirmala and Chandrakala, and contends that since the shed and the compound wall which are but temporary structures, if they are found to be in existence in the land covered by O.S. No.101 of 1993, have to be ordered to be removed from the said land irrespective of the fact that the decree is for prohibitory injunction but not mandatory injunction in view of the ratio in Kilari Pedda Appalaswamy case (supra). It is also his contention that the Court below was in error in relying on the report of the Commissioner said to have been produced in other cases, without even considering whether it has relevance to the facts of this case or not.