Research › Search › Judgment

Andhra High Court · body

2003 DIGILAW 1178 (AP)

Uppuluri Satyam v. Padala Sundaram

2003-09-16

DUBAGUNTA SUBRAHMANYAM

body2003
DUBAGUNTA SUBRAHMANYAM, J. ( 1 ) THE defendant in O. S. No. 825 of 1978 on the file a District Munsif, Rajahmundry filed this appeal against judgment and decree dated 23-12-1988 in A. S. No. 60 of 1985 on the file of II Additional District Judge, East godavari, Rajahmundry confirming the decree and judgment dated 24-6-1985 in the above suit. After the disposal of the appeal by the lower appellate court, it appears that the sole plaintiff died and this appeal is filed against respondents 1 to 4 as legal representatives of sole plaintiff. ( 2 ) NECESSARY facts for disposal of this appeal are as follows:the plaintiff is owner of house bearing no. 746 in Kadiam Panchayat. The defendant owns the house to the north of the plaintiff s house and on the north-western direction of the houses of plaintiff and defendant, one Ganesula Satyam has his own house. To the west of plaintiff s house, there is house of Smt E. Vijayalakshmi. According to the plaintiff, in between those four houses there is a common lane ABCD and into that lane sullage and rain water from those four houses will be drained off through holes V. 1, V. 2, V. 3 and V. 4. The plaintiff further claimed that she got right of passage into the lane and she has no other way of letting off sullage and rain water from her house. She also claimed that a couple of days back to the suit, the defendant blocked the stone pipe of the plaintiff s house with rubbish with a result that there is now noa outlet for the sullage and rain water from the plaintiff s house and the action of the defendant in thus closing the outlet V. 3 and consequently blocking the passage of rain and sullage water from the house of the plaintiff and others is high-handed illegal and without any jurisdiction. She filed a suit seeking permanent injunction against defendant restraining his from interfering with plaintiff s right to drain off the rain and sullage water from her house into the common lane and to order removal of rubbish heaped and bifurcating wall so for constructed in the lane and for costs. The appellant-defendant resisted the suit by filing a written statement. He pleaded that plaintiff and E. Vijayalakshmi have no manner of right in the suit lane. The appellant-defendant resisted the suit by filing a written statement. He pleaded that plaintiff and E. Vijayalakshmi have no manner of right in the suit lane. According to him, the lane exclusively belongs to him and ganesula Atchayamma. He also pleaded that the plaintiff never had any right of easement to let out their sullage or rain water through the lane and the defendant alone is letting out the sullage and rain water to this lane. He pleaded that the plaintiff opened a vent and tried to connect and let off her sullage water into underground drainage constructed by the defendant and he objected for the same. He also pleaded that the wall was being constructed in his own right and it is being divided by consent of parties between Ganesula Atachayamma and the defendant. He constructed the partition wall to safeguard his property. On the above pleadings of both the parties, the learned District Munsif settled appropriate issues for trial. Both the parties adduced oral and documentary evidence. On a consideration of the said evidence, the learned District Munsif accepted the version of the plaintiff and decreed the suit by his judgment dated 24-6-1985. Aggrieved thereby, the defendant preferred an appeal before II Additional District Judge, rajahmundry. The learned District Judge was of the opinion that in the absence of the alleged joint owners as parties to the suit, it is not desirable to decide the suit relating to the rights of the parties in the joint lane. He left it open to the parties to agitate the matter by filing a regular suit for declaration and get their rights decided. However, the learned district Judge concurred with the findings of the trial court and held that the plaintiff has got right to let out rain and sullage water into abcd lane. He accordingly dismissed the appeal and confirmed the decree passed by the trial court. Aggrieved thereby, the defendant preferred this second appeal. However, the learned district Judge concurred with the findings of the trial court and held that the plaintiff has got right to let out rain and sullage water into abcd lane. He accordingly dismissed the appeal and confirmed the decree passed by the trial court. Aggrieved thereby, the defendant preferred this second appeal. ( 3 ) AT the time of admission of this appeal, the learned Admission Judge considered the following two points formulated in the memorandum of grounds of appeal as substantial questions of law that arise for consideration in the present appeal: (1) Whethter the lower court can grant any relief to the plaintiff to let out the sullage water through the suit lane without deciding the question whether the suit lane is a joint lane as claimed by the plaintiff? (2) Whether the lower court is justified in granting the relief to the plaintiff when he did not claim a right of easement in respect of the suit lane and did not implead all parties interested in the suit lane? ( 4 ) POINTS: it is the plea of plaintiff that there is a common lane marked as ABCD in the plaint plan, the said common lane or joint lane belongs to herself, defendant and two others, she is letting out rain and sullage water through vent marked in the plaint sketch into common lane, high-handedly the defendant closed the said passage by putting rubbish in the common lane and obstructed flow of drainage water from the house of plaintiff into the common lane. Except the defendant, two other alleged owners of the joint lane are not parties to the suit. The defendant pleaded that the lane abcd exclusively belongs to him and ganesula Atchayamma. He also pleaded that plaintiff and E. Vijayalakshmi have no manner of right in the suit lane. As plaintiff herself claims that she is one of the joint owners of ABCD lane, the property belongs to her according to her version. Therefore, there is no question of plaintiff acquiring any easementary right of letting out rain and sullage water into ABCD lane. Therefore, the plaintiff has to establish that she is a joint owner of ABCD lane. Unless and until, she establishes that she is a joint owner of ABCD lane, she cannot have any right to drain out sullage and rain water into the said joint lane. Therefore, the plaintiff has to establish that she is a joint owner of ABCD lane. Unless and until, she establishes that she is a joint owner of ABCD lane, she cannot have any right to drain out sullage and rain water into the said joint lane. Though the plaintiff in her plaint pleaded that the lane is marked as ABCD in the plaint plan and there are four vents from four houses including from her house marked as v. 1, V. 2, V. 3 and V. 4, a glance at the plaint s sketch clearly indicates that no lane PS abcd is marked in the plaint s sketch. Though there are four vents marked in the plaint s sketch, they are not indicated as V. 1, v. 2, V. 3 and V. 4 in the plaint s sketch. Therefore, from the plaint s sketch, it is not possible to identify the so called joint ABCD lane and the four vents V. 1, V. 2, V. 3 and v. 4. It is also to be stated that even the measurements of the common lane are not disclosed in the plaint s sketch. Therefore, it is to be held that the plaint s sketch is very vague and serves no purpose. This glaring omission in the plaint s sketch is not noticed by the two courts below while disposing of the suit. ( 5 ) IT is already noticed that there is no question of plaintiff acquiring an easementary right of passage as well as easementary of letting out rain and sullage water into ABCD lane by exercising prescriptory rights of easement inasmuch as the plaintiff herself claims that the lane is joint lane belonging to her and three others. Even though, the learned District Munsif gave a finding that in the lane the plaintiff has got right, the said finding of fact was not affirmed by the learned District Judge in the appeal. The two courts below proceeded on the wrong presumption that the plaintiff has got prescriptory right to let out rain and sullage water into the lane. Such a finding was recorded by the two courts below ignoring the principle of law that an owner cannot acquire any easementary right in his own property. That finding recorded by the two courts below is liable to be set aside. Such a finding was recorded by the two courts below ignoring the principle of law that an owner cannot acquire any easementary right in his own property. That finding recorded by the two courts below is liable to be set aside. The learned District Judge while dealing with the claim of the plaintiff that she is a joint owner of the lane observed that the said claim cannot be decided in the suit in the absence of others whose rights will be affected. After making such an observation, the learned District Judge further observed that as the suit is only for grant of injunction, it suffices of the court to consider whether the plaintiff has made out any case for herself to obtain joint ownership in the lane. In my opinion, the learned District Judge committed a serious error in considering the issue relating to grant of injunction after coming to conclusion that the claim of the plaintiff regarding her joint ownership in the lane cannot be considered in the said suit in the absence of the other owners of the lane. ( 6 ) THE learned Advocate for the appellate relied upon a decision reported in Dasnam naga Sanyasi v. Allahabad Development authority and contended that as the suit is filed for mere permanent injunction and without seeking the relief of declaration of right of plaintiff in the suit joint lane, the suit is liable to be dismissed. The principle of law laid down in the above decision cannot be followed by this court. Even without seeking a declaration of right or title in the disputed property, a party can still maintain a suit for bare permanent injunction. However, the party concerned has to establish incidentally its right in the disputed property. A party who does not have a right in the disputed property cannot claim perpetual injunction. Similarly, no party can claim permanent injunction against the true owner. According to plaintiff herself, defendant is one of Joint owners of suit lane. To succeed in her suit, the plaintiff has to establish incidentally that she has got a joint right in the disputed lane. Similarly, no party can claim permanent injunction against the true owner. According to plaintiff herself, defendant is one of Joint owners of suit lane. To succeed in her suit, the plaintiff has to establish incidentally that she has got a joint right in the disputed lane. In view of the finding of the lover appellate court that the said issue cannot be decided in the suit in the absence of the other parties who have such a joint right, it is to be held that the plaintiff has not established her right in the suit property. It is the connection of the learned counsel for the respondents that in the written statement, the defendant has not taken the plea that the suit for mere permanent injunction is not maintainable and the plaintiff has to seek declaration of her title and therefore, it is not open for the defendant to raise such a contention at this stage. It is also his contention that if the defendant had taken such a plea in the written statement, the plaintiff would have amended her plaint and had sought for necessary and appropriate reliefs. It is to be stated that the suit is not being dismissed on the ground that the plaintiff had not asked for declaration of title in the joint lane. The suit is being dismissed on the ground that she failed to establish even incidentally her right in the joint lane and as she cannot claim under law any prescriptory right over the suit joint lane in as much as she claims to be a joint owner cf the suit lane. ( 7 ) THE learned counsel for the appellant relied upon a decision of this court reported in Sanjeevappa v. Anjanappa. The said decision relates to a suii filed claiming easementary rights. The facts of the said decision and principles of law laid down in the above decision have no application to the facts of the present appeal. Reliance was also placed by him on a decision reported in bhagirathi Saha v. Anantanarayan Das choudhury. It was held by Orissa High court that in a suit alleging that the defendants are making construction in violation of Municipal Rules and irrespective of undertaking given by them, suit cannot be allowed unless plaintiff establishes material injury by such violation. The said principle has no application to the facts of present appeal. It was held by Orissa High court that in a suit alleging that the defendants are making construction in violation of Municipal Rules and irrespective of undertaking given by them, suit cannot be allowed unless plaintiff establishes material injury by such violation. The said principle has no application to the facts of present appeal. Another decision relief upon is a decision of Himachal Pradesh High Court reported in Savitri Devi v. Gauri Dutt. This decision also deals with easementary by prescription. It has no application to the facts of the present case. ( 8 ) THE foregoing discussion clearly establishes that plaintiff cannot seek the relief of permanent injunction without establishing that she is a joint owner of abcd lane. Further she cannot claim either easementary right or prescriptive right in respect of suit lane ABCD without impleading all the parties having Joint rights in the suit lane. The claim of a joint right of the plaintiff in ABCD lane is to be decided only in the presence of all the parties who allegedly have joint ownership in the suit lane. It is thus clear that the plaintiff is not entitled for the relief of permanent injunction and the decrees passed by the two courts below are liable to be set aside. ( 9 ) IN the result, the appeal is allowed with costs. The judgments and decrees of the two courts below are set aside. The suit is dismissed with costs.