The defendants in O.S.No.1292 of 2003 on the file of the II Additional Junior Civil Judge, Visakhapatnam are the appellants. The respondent filed the suit for recovery of a sum of Rs.40,000/- by way of damages from the appellants with interest at the rate of 24% from the date of filing the suit. The trial Court dismissed the suit through judgment, dated 30.03.2007. Thereupon, the respondent filed A.S.No.224 of 2007 in the Court of the VII Additional District Judge (Fast Track Court), Visakhapatnam. The appeal was allowed in part, awarding a sum of Rs.10,000/- as damages, on 22.09.2008.

2. The plea of the respondent was that himself and appellant No.1 are neighbours being the allottees of plot Nos.32 and 33 respectively of Ex-Servicemen Colony, Malkapuram, Visakhapatnam and that after constructing a house in the plot, with the permission of the authority concerned, he completed the construction of compound wall, around his plot in the year 1994. The appellants are said to have demolished the wall on 17.07.2000 highhandedly. It was also mentioned that he filed O.S.No.1706 of 2000 in the Court of the Principal Junior Civil Judge, Visakhapatnam for injunction, against the appellants as regards the interference with the wall and that the suit was decreed on 28.03.2002. He pleaded that the cost of the demolished portion of the wall is about Rs.14,000/- and that he suffered mental agony on account of the highhanded action estimated at Rs.26,000/- and prayed for a decree.

3. Appellant No.1 filed a written statement and the same was adopted by appellant No.2. They disputed the facts pleaded by the respondent as regards construction of compound wall or the expenditure incurred therefor. They admitted that the respondent is their neighbour on the eastern side in plot No.32 but denied the allegation that they have demolished the wall on the eastern side. They denied the allegation that they have caused any injuries to the respondent or his wife. The appellants have also mentioned that A.S.No.67 of 2003 was filed against the decree in O.S.No.1706 of 2000 in the Court of the IV Additional District Judge, Visakhapatnam and that the same was pending.

4. Further case of the appellants was that though the dimension of each plot was 40 feet from East to West and 45 feet from North to South, the respondent has constructed a wall encroaching into the property of the appellants and the matter was taken to the President and Secretary of the New Ex-Servicemen Colony Residents Welfare Association. The respondent is said to have represented that with slight deviation, the construction of the compound wall was made for reasons of Vasthu and after several sittings and with the intervention of the elders, the respondent himself removed the objectionable portion to the extent there was an encroachment into the land of the appellants. They stated that the respondent is a quarrelsome person.

5. The trial Court framed two issues for its consideration, namely “(a) whether the plaintiff is entitled to claim damages from the defendants as prayed for and (b) whether there is cause of action to file the suit as contended by the defendants.” The suit was dismissed and in the appeal, the lower appellate Court framed only one point for its consideration, namely “whether the decree and judgment of the lower Court is sustainable or not” and the appeal was allowed.

6. Sri P.Satyanarayana, learned counsel for the appellants, submits that the suit filed by the respondent is not maintainable inasmuch as he filed O.S.No.1706 of 2000 on the same facts and the subsequent suit was barred under Order II C.P.C. He contends that even after pleading that the wall was demolished, the respondent obtained a decree for perpetual injunction and it was not even alleged that any steps were taken by the appellants after the decree was passed. Learned counsel submits that the lower appellate Court has committed serious error in decreeing the suit without there being a