H.R. Krishnan, J.

This is an application in revision by the defendants in a suit for permanent injunction from the dissident order of the appellate Court granting a temporary injunction of a mandatory nature in favour of the plaintiff-non-applicant, directing the defendants (applicants here) to break down part of the wall constructed by them around their house so that the cattle coming out of the plaintiff's house may be able to go out through the opening.

The facts of the case are comparatively simple and the difference in the factual allegations will be resolved after hearing in the trial Court. At this stage the point for consideration is whether in a situation like this the exceptional course of granting a mandatory injunction to break down part of a structure can be granted, and whether the status quo that is sought to be restored should be the status quo on the date of the intitation of the proceedings or the status quo on an earlier date when according to the plaintiff his encroachment started.

The facts for our purposes can be summarised thus: In village Kogawan the parties live in contiguous structures both of which had been the property of one person in the past. The plaintiff is an earlier purchaser of his portion of the original property from the mother of the person from whom the defendants purchased recently. After the purchase the defendants built a new house and as usual with new houses put up an enclosing wall for security and privacy. Part of the enclosing wall lies to the west of the plaintiffs house in which direction the plaintiff contended there had been always an opening. According to the plaintiff, this opening on the western side was meant for the ingress and egrees of his cattle which otherwise may have to go in and out by the main entrance to the north of the house used by the members of the family. He urged that he had a right of easement for the passage of this cattle in the direction in which the defendant had put up his wall and accordingly prayed that by an order of mandatory injunction the defendants should be directed to make an opening in their wall sufficient for the movement of the plaintiff's cattle in that direction. The defendants joined issue and the suit is pending.

Meanwhile the plaintiff prayed for a temporary injunction for the duration of the suit, the injunction being one of a mandatory nature calling upon the defendants to make a breach in the wall even now with security being afforded by the plaintiff to compensate the defendants in case he the plaintiff lost the suit. The defendants opposed it because it was a serious matter to break down a structure already put up in due course by the defendants before the commencement of the suit. The defendants again led evidence by affidavit to show that the cattle of the house of the plaintiff had never been moving in that direction. The plaintiff, for his part, produced a sale deed in which he urged that a sketch map however crude had been included indicating an opening or door on the western side of this house. The trial Court refused to grant the temporary injunction while the appellate Court felt that all the requirements for a temporary injunction were found here and though it involved breaking down of a structure and the nature of a mandatory injunction, it should be granted. From that the defendants have come up in revision, the temporary mandatory injunction for breaking down part of the wall having been stayed for the duration of the present proceeding.

The defendants have urged on the basis of case law reported in Durg Transport Co. v. Regional Transport Authority 1965 MPLJ 417 : AIR 1965 MP 142 (D.B.) following Nandan Pictures v. Art Picture Ltd. AIR 1956 Cal. 424 and also three unreported single Bench rulings of this Court, that a mandatory injunction of a temporary nature should be granted very sparingly, and if granted should be only for the restoration of the status quo as it stood on the date of initiation of the proceed