Heard the counsel on record.

2. Sri P.S.Murthy and Sri Ashok Kumar Avasthi made submissions at length pointing out the substantial questions of law, on the strength of which the Second Appeal had been admitted.

3. The principal question, which had been argued in elaboration, is that the appellate Court is totally unjustified in granting the relief to the opposite party even while dismissing the appeal and the same is without jurisdiction.

4. This Court on 29.1.1999 made the following order: "Following are the substantial questions of law which arise for consideration in this Second Appeal: (1) Whether the judgment of the lower Court is perverse and whether the finding of the lower appellate Court that the suit land is not of 20 feet width and 60 feet length, is based on no evidence? (2) Whether the lower appellate Court committed illegality in giving substantive relief to the defendants while dismissing the appeal filed by them? The Second Appeal is therefore admitted".

5. For the purpose of convenience, the parties hereinafter would be referred to as plaintiff and defendants as shown in OS No.34 of 1991 on the file of Principal District Munsif, Nizamabad.

6. The plaintiff instituted the suit for perpetual injunction restraining the defendants from encroaching upon the suit schedule road and narrowing it permanently or opening any drain over it and remove the bathroom and basement constructed by the defendants in 20' wide suit schedule road by mandatory injunction with costs. It was averred in the plaint as hereunder: "The plaintiff is the owner and possessor of house bearing No.9-19-57 situated at Malapally locality, Nizamabad. The defendants are occupants of H.No.9-18-58 in the same locality. Their houses are separated by 20' wide public road which is existing for more than 30 years. This road connects another two 20' wide roads which are situated abutting the house of plaintiff and defendants on the north and southern sides except this road is being used by plaintiff for last 30 years. The defendants are also trying to open their drains on this road and to flush out their latrine on the road. The defendants constructed bathroom and basement in the 20' wide road to their side without obtaining permission from the Municipality, due to which the width of the road is reduced by about 9'. In spite of requesting the plaintiff, the defendants are not removing them. The defendants constructed the bathroom two years prior to the institution of suit i.e., in the month of February, 1989 and the basement in the end of February, 1991. The defendants with a malafide motive are trying to encroach upon the 20' wide road and occupy it by erecting fencing on 10' wide portion abutting this road on eastern side of defendants portion. They have no right to encroach upon this road and narrow on the road portion affecting the interest of the plaintiff. The plaintiff suffers personal inconvenience if the defendants are allowed to encroach the road".

7. The defendants resisted the plaint averments by filing a written statement with the following averments: "The lane is a private lane. The elders of the parties earmarked the land meant for this passage long back. It is only a 10' passage. It is not a public road. They denied that the plaintiff has been using the said passage for the last 30 years, and that this main door opens into this passage. They further denied that they are trying to encroach upon the 20' wide road and occupy it by erecting a fencing on 10' wide portion and they are making the passage narrow. The defendants submit that the toilet and bathroom have been in existence for the last 30 years on the eastern side and the present erection of the fencing is in the same lane where their latrine and bathroom are situated. The dimensions of their plot is 60'x60'. They denied that the plaintiff suffer personal inconvenience".

8. On the strength of the above pleadings, the following issues and