JUDGMENT :

B.V.L.N.CHAKRAVARTHI

This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, is filed by the unsuccessful appellant/defendant assailing the decree and judgment, dated 21.02.2000, of the learned Subordinate Judge, Tanuku, West Godavari District, passed in A.S.No.39 of 1991.

2. By the said decree and judgment, the learned Subordinate Judge, Tanuku, partly allowed the first appeal with proportionate costs, and had reversed the decree and judgment, dated 28.12.1990 of the learned 1st Addl.Junior Civil Judge, Tanuku, passed in O.S.No.632 of 1981.

3. I have heard the submissions of Sri N.Vijay, learned counsel appearing for the Appellant/Defendant (‘defendant’, for brevity) at the stage of admission and Sri K.Ramesh Babu, learned counsel for respondents/plaintiffs. I have perused the material record.

4. The appeal is coming up for consideration/judgment on the following limited aspects: – ‘Whether the questions, which are raised in the memorandum of grounds of appeal or any other substantial questions of law are involved? and, if so, whether the second appeal deserves to be allowed?’

5. The appellant is the defendant. The respondents 1 to 6 are the plaintiffs. The parties in this second appeal shall hereinafter be referred to as arrayed in the original suit, for convenience and clarity.

6. To begin with, it is necessary to take note of the respective pleadings/cases of the parties and the events that led to the filing of this second appeal by the defendant.

7. The case of the plaintiffs as is borne out by the material on record, in brief, is that the plaintiffs filed the suit against the defendant for declaration that ‘ABCDEFG’ is a joint lane through which the predecessors in title of plaintiffs and the defendant have been using as a passage for their ingress and aggress to the main road situated on the north. Since ‘ABCDEFG’ is a joint lane through which various families have got a right of passage for their men, cattle, and carts. The width of the lane is to be preserved and the defendant is bound to preserve the width of the road. The plaintiffs have been enjoying the ‘ABCDEFG’ lane from times immemorial and the persons have right of passage should make use of the same in such a way to not to interfere in the free exercise of right of passage for other persons having right to pass through it.

It is further contended that the defendant after purchase of the blue shaded plot, opened a doorway in the wall, ‘EF’ and also constructed steps and pials on either side and opened a vent in the wall and started commencing discharge of used water from his site into the lane and causing nuisance in the lane interfering with the right of free and comfortable usage of right of passage due to stagnation of water etc. The width of the lane is reduced, and no one has got any right to interfere in the width of lane. When the plaintiffs are disputing the matter and demand for removal of the steps, pials, closure of the vent, bode and door way, the defendant promising to comply with the demand and high handedly constructed a wall along side ‘BC’ to a width of 18” at the basement and later 9” and the construction of a wall is a clear encroachment in the joint lane and it reduces the width of lane besides interfering with the free exercise of passage right. The defendant being a powerful man in the village having money and men, proclaiming that he could extend the wall up to ‘A’ and then insert a gate between ‘AG’ annexing the entire lane to his private use. The defendant has no manner of right of interfere in such a way. The 6th plaintiff died after filing of the suit and her legal representatives exec