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2013 DIGILAW 54 (AP)

Kannaiah Mandadi v. Residents of Gollapalli

2013-01-31

L.NARASIMHA REDDY

body2013
JUDGMENT The small dispute pertaining to the right of residents of one Village to use the road to have an excess to the neighbouring village, did not assume finality for the past 3� decades. 2. The respondents, i.e. the residents of Gollapalle Village, filed a representative suit, being O.S.No.344 of 1976 in the Court of I Additional District Munsif, Chittoor, against the appellants, for the relief of mandatory injunction. They pleaded that, in the passage, shown as AB in the plaint sketch, the appellants encroached into the portion marked as MNOP, and obstructed the use of passage. It was pleaded that the passage was in existence from time immemorial and by purchasing an undivided share in the neighbouring land, the appellants put the disputed construction. The original defendant i.e. the deceased - 1st appellant filed written statement opposing the suit. He pleaded that he purchased an undivided share of Ac.0.17 cents forming part of Ac.0.71 cents through Exs.B.1 and B.2 and being the original owner, he has constructed the house. An objection was raised to the form of suit. The trial Court decreed the suit, through judgment dated 11.04.1983. Aggrieved by that, the appellants filed A.S.No.13 of 1985. The appeal was dismissed through judgment, dated 17.02.2011. Thereupon, they filed S.A.No.663 of 1998 before this Court. The second appeal was allowed, on the ground that the parties did not place the entire material before the Courts below, and accordingly, set aside the judgments and decrees passed by the trial Court and the lower Appellate Court and remanded the matter to the lower Appellate Court. After remand, the lower Appellate Court recorded additional evidence and dismissed the appeal. Hence, this second appeal. 3. Heard Sri P.V. Vidyasagar, the learned counsel for the appellants, and Sri S.V. Muni Reddy, learned counsel for the respondent. 4. One of the principal contentions urged by the learned counsel for the appellants is that a suit for mandatory injunction was not maintainable, unless declaratory relief is claimed. The proposition of law no doubt is well settled. However, no such plea was raised before the trial Court, and obviously, no issue was framed thereon. This Court would have examined the plea, but for the fact that this is the second round of litigation before this Court. This plea was very much available, when the appellants filed S.A.No.663 of 1998. However, no such plea was raised before the trial Court, and obviously, no issue was framed thereon. This Court would have examined the plea, but for the fact that this is the second round of litigation before this Court. This plea was very much available, when the appellants filed S.A.No.663 of 1998. The fact that this Court did not take the view that the suit is not maintainable and has remanded the matter for fresh adjudication by the lower Appellate Court discloses that the plea as to the maintainability of the suit was rejected either expressly or through implication. Either way, that aspect assumed finality and it cannot be raised at this stage. 5. Coming to the merits of the matter, on the basis of the pleadings before it, the trial Court framed the following issues for its consideration: 1. “Whether the street marked AB in the plaint sketch has been in existence from times immemorial and whether it has been treated as a public street by the residents of Gollapalli Village? 2. Whether the residents of Gollapalli village have acquired a statutory right in the said street by prescription? 3. Whether the alleged encroachment by the defendants on the said street is true? 4. Whether the plaintiff is entitled to the mandatory injunction prayed for? 5. To what relief is the plaintiff entitled?” 6. On behalf of the respondents, PWs.1 to 3 were examined and Ex.A.1 was filed. Except that DW.1 was deposed as a witness, no other evidence was placed before the trial Court. The suit was decreed and the appeal filed against it was dismissed in the first round. After remand by this Court, the lower Appellate Court recorded further evidence in the form of depositions of DWs.2 to 4 and marked documents as Exs.B.1 to B.11. The findings recorded by the trial Court were affirmed. 7. It is not in dispute that the passage marked as AB in the plaint sketch was in existence for long time. The respondents have established the same by examining quite good number of witnesses. The appellants claim undivided share of Ac.0.17 cents forming part of Ac.0.71 cents, through Exs.B.1 and B.2. It was not even their case that any partition was effected and their share was determined with reference to the boundaries. The respondents have established the same by examining quite good number of witnesses. The appellants claim undivided share of Ac.0.17 cents forming part of Ac.0.71 cents, through Exs.B.1 and B.2. It was not even their case that any partition was effected and their share was determined with reference to the boundaries. It was elicited from DWs.1 and 2 that they did not know the boundaries of the land purchased under Exs.B.1 and B.2. That being the case, the obstruction caused to the public road deserves to be removed and that is what the trial Court and the lower Appellate Court have done in decreeing the suit and rejecting the appeal. No substantial question of law arises for consideration in this second appeal. 8. The second appeal is accordingly dismissed. There shall be no order as to costs. 9. The miscellaneous petition filed in this second appeal shall also stand disposed of.