COMMON JUDGMENT :

The present CMA is filed against the judgment and decree dated 20.10.2017 passed in A.S No.123 of 2009 on the file of Principal District Judge, Nellore, SPSR Nellore District in O.S No.330 of 1988 on the file of III Additional Junior Civil Judge, Nellore.

2. Originally the suit in O.S No.330 of 1988 was filed by the plaintiff/appellant herein before the III Additional Junior Civil Judge, Nellore (for short “the trial Court”) for grant of declaration and for grant of mandatory injunction. The same was partly allowed in favour of the plaintiff with suit costs and declaring the plaintiff’s title over the suit schedule property in BEFC with as width of 5 feet 8 inches from E to B and 7 feet between F to C to the plaintiff and also directed the defendants to deliver the vacant possession within three months from the date of judgment, however failing which the plaintiff is at liberty to do the same due to process of law. Aggrieved by the same, the 7th defendant in O.S.No.330 of 1998 has preferred an appeal in A.S No.123 of 2009 on the file of the Principal District Judge, Nellore (for short “the first appellate Court”).

3. For the sake of convenience, the parties herein after referred to as arrayed in the suit in O.S.No.330 of 1998 before the trial Court.

4. The plaintiff instituted a suit in O.S No.330 of 1988 before the trial Court and she is the absolute owner of the suit property shown as ABCD in the plaint plan, to an extent of Ac 0.16 ½ cents purchased from one Lade Mohan Rao under a sale deed dated 15.5.198 and the plaintiff constructed a house with asbestos sheet roof. While so, the defendants No.1 to 3 put up iron fencing to the north of their site, encroaching into the plaintiff’s site and the plaintiff demanded them to remove fencing. Though the defendants agreed to remove, filed a suit in O.S No.610 of 1985 on the file of I Additional Junior Civil Judge, Nellore for grant of permanent injunction, which was a counterblast to the claim of the plaintiff. On the other hand, the defendants No.2 and 3 sold their site to the defendants No.4 to 6, who are subsequent purchasers, impleaded as proper and necessary parties, and thus the plaintiff filed suit.

5. The defendants No.1, 2 to 5 resisted the suit of plaintiff. The 1st defendant filed written statement and the same was adopted by defendants No.2 to 5 and while denying all the allegations made in the plaint, stated that the defendants No.2 and 3 acquired under their sale deed, and 3rd defendant sold an extent of 40 Ankanams, with specified boundaries, to 4th defendant, with specified boundaries, to 4th defendant, under registered sale deed dated 15.6.1988, and defendants No.2 and 3 are the owners of site shown as BEFC in plaint plan, and they are in possession of the same, and plaintiff has no right or interest, in the said site shown as BEFC, prayed to dismiss the suit.

6. The 6th defendant remained ex parte before the trial Court.

7. Basing on the above pleadings, the trial Court has framed the following issues:

i) Whether the plaintiff is entitled to declaration and possession of BEFC site as per plaint plan?

ii) Whether the plaintiff is entitled for mandatory injunction as prayed for?

iii) To what relief?

8. During the course of trial, on behalf of the plaintiff, she herself examined as PW.1 and Ex.A1 to Ex.A12 were marked and on behalf of the defendants No.1 to 5, 4th defendant was examined as DW.1 and no documents were marked on their behalf.

9. The trial Court after hearing both sides and upon perusing the entire material available on record, partly decreed the suit vide judgment and decree dated 20.10.1992 declaring that the plaintiff is the absolute owner of site shown as BEFC in the plaint plan, to a width of 5 feet 8 inches from E and B, and 7 feet between F to C, with a direction to defendants to deliver vacant possession of the same, within three months, and as the iron fencing was removed during pendency of the suit, hence the relief of mandatory injunc