Pothuru Venkata Rama Raju Vs. Yandra Venkata Narsayya and ors. - Court Judgment

Excerpt:
- - for that purpose it is necessary that the evidence on record is gone into and it has to be seen whether the appellant-petitioner has any chance of success.orderv. bhaskara rao, j.1. the order in i.a.no. 729 of 1996 in a.s.no. 34 of 1996 on the file of the subordinate judge, narsapur, dated 13-11-1996 making an interim stay granted on 15-7-1996 absolute subject to the result of the appeal is assailed in this revision petition by the respondents - plaintiffs (sic. petitioner-plaintiff).2. the revision petitioner filed o.s.no. 278 of 1989 on the file of the district munsif, palakol seeking perpetual injunction restraining the respondents -defendants from interfering with his enjoyment of coconut trees in r.s. no. 624 and 625 of poduru gram panchayat on the ground that he had planted the said trees in poramboke puntha having obtained necessary licence from the gram panchayat and subsequently he has been granted tree pattas. he asserted that he has been watering and nourishing the said plants and he has been enjoying the usufruct thereof. during the pendency of the suit, temporary injunction was granted restraining the respondents - defendants from interfering with the enjoyment of the revision petitioner over the said trees in i. a.no. 850 of 1989 and the temporary injunction was in force till the disposal of the suit. the suit was resisted by the respondents-defendants. it is averred that the aforesaid punta did not belong to the gram panchayat and that it was being used as easing ground for public of chittitagunta sangham and as passage for men and cattle. after full trial, the suit was decreed with costs.3. the respondents-defendants preferred a.s.no. 34 of 1996 on the file of subordinate judge, narsapur against the judgment and decree in o.s.no. 278 of 1989. they also filed i.a.no. 729 of 1996 seeking stay for operation of execution of the decree in o.s.no. 278 of 1989 dated 17-1-1997 (sic.) till the disposal of the appeal. it is averred in the stay petition that gram panchayat, poduru has no right to grant any licence or patta for those trees as the above land stood vested in penumadam village and that he has adduced sufficient evidence to that effect. it is further asserted that chittitagunta sangham planted the trees in r.s.nos. 101 and 102 for the purpose of developing ramalayam and the yield was meant for ramalayam. it is finally stated that the plants have to be watered and unless the stay is granted, the trees may perish.4. on a consideration of the above averments, the learned subordinate judge granted ex parte interim stay on 15-7-1996 subject to deposit of lower court costs.5. subsequently, the revision petitioner entered appearance and filed a counter. all the material averments stated above are denied. the contentions raised in the plaint and the affidavit filed along with the temporary injunction petition are reiterated. it is further stated that abundant oral and documentary evidence was adduced in support of his case showing that the coconut sapplings were planted in puntha in r.s.nos. 624 and 625 of poduru gram panchayat. ex.a-21 is the licence/patta granted by poduru gram panchayat and ex.a-3 is the tax receipt. ex.a-4 is an application for planting additional coconut trees and ex.a-5 is the acknowledgment of the said application. the assertion that the above land is part of r.s.nos. 101 and 102 of penumadam cillage and that penumadam gram panchayat is the authority to issue licence or patta is denied. on the other hand, it is asserted that the above land is part of r.s.nos. 624 and 625 of poduru gram panchayat and it is stated that for the first time the respondents-defendants have alleged that the land is part of r.s.nos. 101 and 102 of penumadam village. it is further asserted that the disputed land was got surveyed by mandal surveyor, poduru, and he is examined as p.w. 3 and his report is marked as ex.x-1. as such the controversy, if any, whether the disputed trees are situated in r.s.nos. 101 and 102 of penumadam village or in r.s.nos. 624 and 625 of poduru village was resolved and it is established that the disputed land is in r.s.nos. 624 and 625 of poduru and that the learned munsif weighed the entire evidence and decreed the suit. it is, therefore, urged that the stay petition be dismissed.6. the learned subordinate judge considered the contentions of both sides and passed the impugned order making the interim stay dated 15-7-1996 absolute subject to the result of the appeal. aggrieved by the above order the present civil revision petition is filed by the respondent-plaintiff in the lower court.7. sri chandrasekhar, learned counsel for the revision petitioner strenuously contended that a decree for perpetual injunction is not executable and hence there is no question of granting stay of execution of such a decree. he then took me through the impugned order and contended that the averments of both sides have not been considered at all and only a cryptic order making the interim stay absolute is passed and no reasons are assigned for staying or suspending a decree for perpetual injunction which was passed after full trial and after scrutinising the evidence adduced by both the parties. he, therefore, urged that the impugned order may be set aside. on the other hand, sri krishna murthy, learned counsel for the respondents-defendants contended that the appeal has been preferred against the judgment and decree and till the disposal of the appeal, the lower court thought it fit to stay the operation of the decree and that there is no illegality in the impugned order.8. i applied my anxious consideration to the rival contentions and perused the impugned order. at the very out set it may be stated that the impugned order is not at all satisfactory in the sense that neither the averments of both sides are stated nor any point for determination is formulated and no reasons are recorded for allowing the petition.9. it has to be borne in mind that there is any amount of difference between a decree for recovery of money or a decree for possession on one hand and a decree for perpetual injunction on the other. in the former cases, the decrees are executable and whenever an appeal is filed, interim stay is granted with a view to maintain the status quo between the parties. order 41 rule 5 c.p.c. empowers an appellate court to pass such an order in respect of such decrees. whereas in the latter cases, the decree comes into force the moment it is pronounced by the trial judge and there is no question of stay of such a decree. it is noteworthy that in cases of decree for perpetual injunction it is the contravention if any that becomes executable and it is the act of disobedience of the decree that gives rise to cause of action for invoking order xxi rule 32 c.p.c. otherwise there is no question of executing such a decree unlike in the former cases. to dilate further in all decrees for possession or demolition of structures or payment of money, when once the decree is executed it will be difficult to restore the parties to the previous position and there is every likelihood of third parties' interests being set in and many more complications are likely to arise. to avoid such contingencies, order 41 rule 5 c.p.c. requires stay of execution in such executable decrees. i, therefore, find force in the contention of sri chandrasekar that the decree for perpetual injunction in a case of this type is not executable and question of stay of such decrees does not arise.10. it is another tiling that judgments and decrees for perpetual injunction are suspended in appropriate cases. for that purpose it is necessary that the evidence on record is gone into and it has to be seen whether the appellant-petitioner has any chance of success. in the case on hand the revision petitioner has raised several contentions in the counter, but none of them are looked into. it is noteworthy that the evidence adduced by the revision petitioner in support of his case has been set out in so many words and evidently the trial court appears to have passed the decree for perpetual injunction on the basis of that evidence. i do not think that the learned sub-judge would have easily brushed aside such evidence if he had perused the same, though superficially, as the matter under consideration was only an interlocutory application. nevertheless, it was incumbent upon the lower court to have considered whether the decree which was sought to be suspended or stayed, as the case may be, was such that it was not supported by any evidence whatsoever. in these circumstances, i have to observe that there is no proper application of mind on the part of the learned subordinate judge to any of the matters in controversy and the impugned order is, therefore, liable to be set aside.11. in the result, the civil revision petition is allowed and the impugned order is set aside and the matter is remanded to the lower court for fresh consideration. it is no doubt true that with the same effort and at the same time the main appeal itself can be disposed of. it is, therefore, left open to the lower court either to dispose of the interlocutory application on merits afresh keeping in view the above observations or to dispose of the appeal itself. in any case, the learned subordinate judge will be free to exercise his judicious discretion and he may dispose of the la. or main appeal strictly in accordance with the merits without being influenced in any manner by the observations of this court regarding the evidence adduced by the parties. there will be no order as to costs.

Judgment:
ORDER

V. Bhaskara Rao, J.

1. The order in I.A.No. 729 of 1996 in A.S.No. 34 of 1996 on the file of the Subordinate Judge, Narsapur, dated 13-11-1996 making an interim stay granted on 15-7-1996 absolute subject to the result of the appeal is assailed in this Revision Petition by the respondents - plaintiffs (sic. petitioner-plaintiff).

2. The Revision Petitioner filed O.S.No. 278 of 1989 on the file of the District Munsif, Palakol seeking perpetual injunction restraining the respondents -defendants from interfering with his enjoyment of coconut trees in R.S. No. 624 and 625 of Poduru Gram Panchayat on the ground that he had planted the said trees in poramboke puntha having obtained necessary licence from the Gram Panchayat and subsequently he has been granted tree pattas. He asserted that he has been watering and nourishing the said plants and he has been enjoying the usufruct thereof. During the pendency of the suit, temporary injunction was granted restraining the respondents - defendants from interfering with the enjoyment of the Revision Petitioner over the said trees in I. A.No. 850 of 1989 and the temporary injunction was in force till the disposal of the suit. The suit was resisted by the respondents-defendants. It is averred that the aforesaid punta did not belong to the Gram Panchayat and that it was being used as easing ground for public of Chittitagunta Sangham and as passage for men and cattle. After full trial, the suit was decreed with costs.

3. The respondents-defendants preferred A.S.No. 34 of 1996 on the file of Subordinate Judge, Narsapur against the judgment and decree in O.S.No. 278 of 1989. They also filed I.A.No. 729 of 1996 seeking stay for operation of execution of the decree in O.S.No. 278 of 1989 dated 17-1-1997 (sic.) till the disposal of the appeal. It is averred in the stay petition that Gram Panchayat, Poduru has no right to grant any licence or patta for those trees as the above land stood vested in Penumadam village and that he has adduced sufficient evidence to that effect. It is further asserted that Chittitagunta Sangham planted the trees in R.S.Nos. 101 and 102 for the purpose of developing Ramalayam and the yield was meant for Ramalayam. It is finally stated that the plants have to be watered and unless the stay is granted, the trees may perish.

4. On a consideration of the above averments, the learned Subordinate Judge granted ex parte interim stay on 15-7-1996 subject to deposit of lower Court costs.

5. Subsequently, the Revision Petitioner entered appearance and filed a counter. All the material averments stated above are denied. The contentions raised in the plaint and the affidavit filed along with the temporary injunction petition are reiterated. It is further stated that abundant oral and documentary evidence was adduced in support of his case showing that the coconut sapplings were planted in puntha in R.S.Nos. 624 and 625 of Poduru Gram Panchayat. Ex.A-21 is the licence/patta granted by Poduru Gram Panchayat and Ex.A-3 is the tax receipt. Ex.A-4 is an application for planting additional coconut trees and Ex.A-5 is the acknowledgment of the said application. The assertion that the above land is part of R.S.Nos. 101 and 102 of Penumadam Cillage and that Penumadam Gram Panchayat is the authority to issue licence or patta is denied. On the other hand, it is asserted that the above land is part of R.S.Nos. 624 and 625 of Poduru Gram Panchayat and it is stated that for the first time the respondents-defendants have alleged that the land is part of R.S.Nos. 101 and 102 of Penumadam village. It is further asserted that the disputed land was got surveyed by Mandal Surveyor, Poduru, and he is examined as P.W. 3 and his report is marked as Ex.X-1. As such the controversy, if any, whether the disputed trees are situated in R.S.Nos. 101 and 102 of Penumadam village or in R.S.Nos. 624 and 625 of Poduru village was resolved and it is established that the disputed land is in R.S.Nos. 624 and 625 of Poduru and that the learned Munsif weighed the entire evidence and decreed the suit. It is, therefore, urged that the stay petition be dismissed.

6. The learned Subordinate Judge considered the contentions of both sides and passed the impugned order making the interim stay dated 15-7-1996 absolute subject to the result of the appeal. Aggrieved by the above order the present Civil Revision Petition is filed by the respondent-plaintiff in the lower Court.

7. Sri Chandrasekhar, learned Counsel for the Revision Petitioner strenuously contended that a decree for perpetual injunction is not executable and hence there is no question of granting stay of execution of such a decree. He then took me through the impugned order and contended that the averments of both sides have not been considered at all and only a cryptic order making the interim stay absolute is passed and no reasons are assigned for staying or suspending a decree for perpetual injunction which was passed after full trial and after scrutinising the evidence adduced by both the parties. He, therefore, urged that the impugned order may be set aside. On the other hand, Sri Krishna Murthy, learned Counsel for the respondents-defendants contended that the appeal has been preferred against the judgment and decree and till the disposal of the appeal, the lower Court thought it fit to stay the operation of the decree and that there is no illegality in the impugned order.

8. I applied my anxious consideration to the rival contentions and perused the impugned order. At the very out set it may be stated that the impugned order is not at all satisfactory in the sense that neither the averments of both sides are stated nor any point for determination is formulated and no reasons are recorded for allowing the petition.

9. It has to be borne in mind that there is any amount of difference between a decree for recovery of money or a decree for possession on one hand and a decree for perpetual injunction on the other. In the former cases, the decrees are executable and whenever an appeal is filed, interim stay is granted with a view to maintain the status quo between the parties. Order 41 Rule 5 C.P.C. empowers an appellate Court to pass such an order in respect of such decrees. Whereas in the latter cases, the decree comes into force the moment it is pronounced by the trial judge and there is no question of stay of such a decree. It is noteworthy that in cases of decree for perpetual injunction it is the contravention if any that becomes executable and it is the act of disobedience of the decree that gives rise to cause of action for invoking Order XXI Rule 32 C.P.C. Otherwise there is no question of executing such a decree unlike in the former cases. To dilate further in all decrees for possession or demolition of structures or payment of money, when once the decree is executed it will be difficult to restore the parties to the previous position and there is every likelihood of third parties' interests being set in and many more complications are likely to arise. To avoid such contingencies, Order 41 Rule 5 C.P.C. requires stay of execution in such executable decrees. I, therefore, find force in the contention of Sri Chandrasekar that the decree for perpetual injunction in a case of this type is not executable and question of stay of such decrees does not arise.

10. It is another tiling that judgments and decrees for perpetual injunction are suspended in appropriate cases. For that purpose it is necessary that the evidence on record is gone into and it has to be seen whether the appellant-petitioner has any chance of success. In the case on hand the Revision Petitioner has raised several contentions in the counter, but none of them are looked into. It is noteworthy that the evidence adduced by the Revision Petitioner in support of his case has been set out in so many words and evidently the trial Court appears to have passed the decree for perpetual injunction on the basis of that evidence. I do not think that the learned Sub-Judge would have easily brushed aside such evidence if he had perused the same, though superficially, as the matter under consideration was only an interlocutory application. Nevertheless, it was incumbent upon the lower Court to have considered whether the decree which was sought to be suspended or stayed, as the case may be, was such that it was not supported by any evidence whatsoever. In these circumstances, I have to observe that there is no proper application of mind on the part of the learned Subordinate Judge to any of the matters in controversy and the impugned order is, therefore, liable to be set aside.

11. In the result, the Civil Revision Petition is allowed and the impugned order is set aside and the matter is remanded to the lower Court for fresh consideration. It is no doubt true that with the same effort and at the same time the main appeal itself can be disposed of. It is, therefore, left open to the lower Court either to dispose of the Interlocutory Application on merits afresh keeping in view the above observations or to dispose of the appeal itself. In any case, the learned Subordinate Judge will be free to exercise his judicious discretion and he may dispose of the LA. or main appeal strictly in accordance with the merits without being influenced in any manner by the observations of this Court regarding the evidence adduced by the parties. There will be no order as to costs.