IMPORTANT POINT
Failure to seek declaration and recovery of possession is a legal hurdle in granting a mandatory injunction. The burden to establish the right shifts to the plaintiff, who must prove the disputed lane exclusively belongs to him.

JUDGMENT

1. Plaintiff is the appellant in this appeal filed under Sec. 100 of Code of Civil Procedure (C.P.C.). Respondent No.1 is the original defendant in the suit. Respondent Nos.2 and 3 are added in this Court by virtue of orders dtd. 10/2/2020 in I.A.No.2 of 2019.

2. O.S.No.768 of 2006 is a suit where the prayer of the plaintiff was for a mandatory injunction seeking removal of two taps erected at point H1 and L and pipeline erected between these points in a length of 20 feet and a depth of 1 feet under the ground as defendant made such arrangements by encroaching into plaint schedule property. A further prayer was made to fix the boundaries between both parties in accordance with plaint plan. After due trial, learned I Additional Junior Civil Judge, Guntur by a judgment dtd. 17/6/2009 decreed the suit in favour of the plaintiff. Aggrieved defendant preferred A.S.No.373 of 2009. Learned III Additional District Judge, Guntur, by a reasoned judgment, allowed the appeal and set aside the trial Court judgment and consequently dismissed O.S.No.768 of 2006. It is in those circumstances, the plaintiff has preferred this second appeal.

3. On 3/2/2010 a learned Judge of this Court admitted the second appeal on these two following substantial questions of law:

1. Whether one has to compulsorily seek for declaration of title in all cases of mandatory injunction, even though when the dispute is not for title? 2. Whether the burden is only on the plaintiff to establish his right when it is causing public nuisance and obstructing the way or shifts to the defendant when the defendant claims that the land belongs to Gram Panchayat, he is entitled as a matter of right to illegally lay pipes without permission of Gram Panchayat?

An additional question that arises is:

3. Whether appellant made out a case for additional evidence prayed for in I.A.No.3 of 2019?"

4. The facts in which they came up for consideration require a mention here. The schedule appended to the plaint described an extent of 300 square yards consisting of a tiled house and a thatched shed and a hey-rick located in D.No.4/3/175 in Lalpuram Village of Guntur District. The southern boundary is shown as property of the defendant. Plaint narrates as to how the plaintiff secured ownership and possession over the plaint schedule property wherein he claimed to have got 150 square yards out of it under a registered sale deed dtd. 15/4/1985 and claimed to have succeeded to the remaining 150 square yards of the property. A plan is appended to the plaint describing the plaint schedule property as within ABCDEFGH. It is stated that on the west of this property there is panchayat bazar. For access to that for the plaintiff there is a nadava in AHFG which is exclusively meant for the plaintiff. The property of the defendant was on the western side. The defendant had a house and a compound wall. AH is the wall that divides the properties of both parties. Defendant without any manner of right over the nadava of the plaintiff laid the pipeline and fixed the taps and thus, encroached into the property of the plaintiff. The right to ingress and egress exclusively exercised by the plaintiff is hindered by the acts of the defendant and therefore, the suit.

5. The defendant filed the written statement resisting the claim stating that the nadava claimed by the plaintiff is not exclusively owned by the plaintiff. Property of the defendant situate on the south of the plaintiff's property. For the defendant's property on northern side the eves space of the house of the defendant extends over the wall and that eves space exclusively belongs to the defendant and after obtaining due permission from the panchayat, he laid the pipeline and erected the taps within his own property. That the nadava claimed is panchayat bazaar. That the defendant never encroached on the property of the plaintiff. In fact, plaintiff was tying his buffaloes in the property of the defendant at the eves space and with a view to