This second appeal arises out of the common judgment dated 23.02.2007 passed by the Senior Civil Judge, Chirala in A.S.Nos.1 and 2 of 2006 confirming the decree and judgment dated 17.12.2005 passed by the Principal Junior Civil Judge, Chirala in O.S.No.229 of 2002.

2. Heard the learned counsel appearing for the appellants and the respondents.

3. For the sake of convenience, the parties will be referred to as “the plaintiffs and the defendants”.

4. This second appeal is preferred by the defendants 1 and 2. The plaintiffs filed the suit for mandatory injunction against the defendants seeking removal of some constructions made by the defendants in items 1 and 2 of the plaint schedule property. The trial Court decreed the suit. The appeal preferred there-against was dismissed by the learned first appellate Court confirming the decree and judgment passed by the trial Court. Feeling aggrieved, the defendants 1 and 2 preferred the present second appeal.

5. The second appeal is admitted upon considering the following substantial questions of law involved in the appeal:

Whether:

a) The lower appellate Court failed to follow the legal principles to the effect that mere suit for mandatory injunction is not maintainable when the title of the plaintiffs is denied.

b) The learned lower appellate Court failed to follow the legal principle that the appellants have made the constructions around than 20 years back and a mandatory injunction directing demolition of the structures is not allowed under law.

c) The learned courts below failed to interpret the documents Exs.B-1 to B-23.

d) The learned Courts below wrongly held that a suit for mandatory injunction can be entertained by private party through the government land after a long lapse of the construction of houses in the government land.

e) The Courts below wrongly held that the burden is on the appellants/defendants ignoring the Section 10 of the Evidence Act.

6. The plaintiffs claimed title to their respective houses having constructed in 20 cents of land purchased by late Nakkala Subba Rao who is their ancestor in D.No.193/1 of Kothapet village under the registered sale deed bearing No.341/969. The houses constructed by the plaintiffs are shown as C1, C2, C3 and C4 in the plaint plan. The plaintiffs alleged in the plaint that the defendants raised constructions in the plaint schedule plan. The said constructions according to the plaintiffs are in the road margin and therefore, they are liable to be removed. The defendants 1 and 2 contended that in or about 1985, they occupied the government poramboke land, they have been in possession and enjoyment of the said land since then, some time thereafter they constructed the houses therein, the Mandal Revenue Officer, Vetapalem recognized their possession and issued Section 7 notice in the year 1990 and the issuance of section 7 notice shows that they have been in possession of the said houses and that they have also been paying house tax to the Gram Panchayat, Kothapet. Exs.B-1 to B23 documents marked on behalf of the defendants clearly indicate their long possession over respective houses.

7. It was also brought on record in the evidence that the plaintiffs had some other way to reach the Vedarevu main road and thus, the defendants’ contention is that the plaintiffs cannot seek the relief of mandatory injunction against them which was granted by the learned trial Court and confirmed by the first appellate Court. The learned trial Court, however, relied on a decision reported in S. SOMESWARA RAO AND OTHERS v. S. TIRUPATAMMA AND OTHERS (1988 (2) Law Summary 223)wherein this Court held as follows:

“No person can be allowed to occupy a portion of a public road, a highway, or even a public pathway and argue that even after his encroachment there is sufficient space left for public to pass by. He cannot be the judge of the requirements of the public, nor can he decide for himself what extent must be left for public use and what ex