JUDGMENT:- Special leave granted.

2. Petitioner is the original plaintiff. He filed a suit for a declaration and for removal of an encroachment by first constructing a wall in a passage used as a lane for passing and repassing at points W W-1 and also by dumping some earth from A to A-1 in the sketch referred to by the learned Munsif in his judgment and thereby obstructed the plaintiff from passing and repassing with cattle and carts from the lane.

3. This suit was resisted by the defendants 2 and 3 as per the written statement, inter alia, contending that the compound wall has been constructed at the boundary of the land of their ownership which defendant No. 2 purchased in 1912 from one Kodali Subbaiah. It was alleged that about 13 years back, defendants Nos. 2 and 3 raised the level of the open land to the west of the wall to a height of one yard because they are owners of half of the area, divided North South of the open space beyond the western wall of their house. The measurements given by the plaintiff were disputed.

4. The learned Trial Judge decreed the suit against defendants Nos. 2 and 3 holding that the construction of the wall was undertaken few days prior to the filing of the suit and this wall is constructed by defendants Nos. 2 and 3 after encroaching upon the open space which was to be used as pasage. It was also held that by raising the level of the part of the land adjacent and to the west of the wall was also an act of encroachment. Accordingly, the learned Munsif gave a mandatory injunction directing the defendants to remove the wall as also lower the level of a portion of the space so that the plaintiff can have a full use of the passage. In reaching this conclusion, the learned Judge implicitly relied upon the reports and the maps submitted by Court Commissioners and recorded a specific finding that defendants Nos. 2 and 3 have encroached into the suit passage to an extent of 211/2" on the southern side and 8" on the northern side by constructing a wall and also by placing a Tandu adjacent and to the west of the compound wall. The learned Munsif accordingly directed removal of encroachment. The suit against the other defendants was dismissed.

5. Defendants 2 and 3 preferred A.S. No. 110 of 1073 in the Court of the Subordinate Judge, Tenali. The learned Appellate Judge held that the wall WW-1 was constructed. by defendants 2 and 3 in 1956, while the plaintiff filed the suit for mandatory injunction in 1965. The learned Judge also held that in the plaint as originally filed, there was no prayer for removal of the wall on the ground that it constitutes an encroachment on the passage land and that this was added by an amendment to the plaint in 1969 after the report of the first commissioner was received. The learned Judge then held that this delay on the part of the plaintiff in approaching the Court for such discretionary relief of mandatory injunction is sufficient to deny him the relief for removal of wall on the maxim that delay defeats equity. The learned Judge accordingly moulded his relief in para 40 of the judgment as under:

"In view of my finding on point No. 4 the appeal is allowed to that extent only viz., with regard to the relief of mandatory injunction for removing the wall W W-1. With regard to the other reliefs the judgment and decree of the lower Court are confirmed and the appeal is dismissed with costs."

The net effect of the judgment is that even though construction of the wall W. W-1 by defendants 2 and 3 constituted an encroachment in land used for passage, the plaintiff was held disentitled to a relief of removal of encroachment but the raising of the level by spreading of Tandu in a portion of land to the west of the wall W W-1 was held to be an encroachment and which the defendants 2 and 3 were directed to remove and keep the passage open.

6. Plaintiff preferred Second Appeal No. 68 of 1977 in the High Court of Judicature Andhra Pradesh at Hyderabad. The learned singe Judge before whom the