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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
M. VENKATA RAMANA, J.
Vucha Ramakoteswara Rao S/o Nagaiah – Petitioner
Versus
Gade Veeranjaneyulu S/o Radhakrishna Murthy – Respondent
Second Appeal No. 760 of 2003
Decided On : 05-11-2021
Specific Relief Act - Section 38 - Sale deed - Whether plaintiff is entitled for permanent injunction as prayed for - Appellant as plaintiff claimed that in order to reach his property shown as AHKF in the plaint plan from Zilla Parishad road on the south except this ABCD lane there is no other access which he has been exclusively enjoying - His further claim is that site in his occupation included certain portion therein which he had purchased from his brother sale deed - Respondents 1 and 2 are in occupation of property shown as KFPNML in plaint plan - It is to south of property of appellant - There is a wall shown as KF in plaint plan separating these two properties - There is also Temple as per plaint plan shown as PSRN by side of respondents property.
Finding of the court :
Appellant is justified in seeking mandatory injunction for removal of this obstruction - Trial Judge appreciated this fact situation in proper perspective while granting this relief favoring appellant - Established user of ABCD lane including by appellant and his predecessors well over decades is on record and also highhanded acts of respondents in causing obstruction to use this passage by raising a thatched shed - In those when right to use this ABCD lane is obstructed appellant is justified in stating that his legal right in terms of Section 38 of Specific Relief Act thus invaded requesting to prevent respondents by means of a prohibitory injunction - Learned trial Judge is right in granting this relief to appellant.
Result : Appeal Allowed
JUDGMENT :
M. VENKATA RAMANA, J.
1. The dispute in this second appeal is in respect of a lane described as ABCD in the plaint plan (Ex.A3) of 4 yards wide.
2. The appellant as the plaintiff claimed that in order to reach his property shown as AHKF in the plaint plan from Zilla Parishad road on the south, except this ABCD lane, there is no other access which he has been exclusively enjoying. His further claim is that the site in his occupation included certain portion therein which he had purchased from his brother Sri. Vucha Pitchaiah under the sale deed dated 25.04.1979.
3. The respondents 1 and 2 are in occupation of the property shown as KFPNML in the plaint plan. It is to the south of the property of the appellant. There is a wall shown as KF in the plaint plan separating these two properties. There is also Sri. Rama Temple as per the plaint plan shown as PSRN by the side of the respondents property.
4. The complaint of the appellant is that the respondents 1 and 2 without any manner of right encroached upon ABCD lane, who had obtained sale deeds in respect of their site showing excessive area than what was available on the ground and after filing the suit they also constructed a thatched shed encroaching into this ABCD lane though there was an order of interim injunction against them.
5. On such premise, the appellant requested for grant of permanent injunction against the respondents stating that the third respondent was intending to purchase the property from the respondents 1 and 2, restraining them from interfering with ABCD lane and his right of passage through this lane as well as for mandatory injunction directing the respondents to remove the obstruction in this lane.
6. The respondents 1 and 2 resisted the claim of the appellant disputing the area of the site of the appellant while asserting that their site is in accordance with the area mentioned in their title deeds. Asserting that they are in occupation of the property beyond KF wall, they further contended that there is a gully, which is the access to the appellant all along KG shown in the plaint plan to the north-west of this property. They also questioned the width of ABCD lane stating that it is only of 3 yards wide. They further contended that this lane ABCD is meant for them, which their predecessors were enjoying and a wall AD was constructed preventing Sri. Pedana Reddaiah and others from enjoying this lane. They complained that the appellant occupied the northern portion of this lane to the east of his house, where he has been keeping paddy heaps, tethering cattle etc. Stating that they have right to use this lane, disputing the right claimed by the appellant, they objected the claim of the appellant.
7. On the pleadings, trial Court settled the following issues and additional issues for trial:
2. To what relief?
Additional issue:
1. Whether the plaintiff is entitled for mandatory injunction as prayed for?
8. The parties went to trial. The appellant examined himself as PW-1 apart from PW-2 and PW-3 in support of his contention while PW-4 is the advocate commissioner, who visited the suit site during trial. He relied on Ex.A1 to Ex.A9 and through PW-4 learned Commissioner Ex.C1 to Ex.C15 marked are also relied on by him. The respondents 1 and 2 examined themselves as DW-1 and DW-2 and DW-3 is one of their vendors in support of their contention while relying on Ex.B1 to Ex.B4.
9. On the material and evidence, learned trial Judge accepted the version of the appellant holding that the respondents 1 and 2 encroached into this lane towards east and decreed the suit as prayed granting permanent injunction and mandatory injunction against the respondents.
10. In the appeal preferred by the respondents against the decree and judgment of the trial Court, they were set aside and consequently, the suit was dismissed.
11. In these circumstances, this second appeal is presented.
12. Sri. E. Sambasiva Prat
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