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2021 DIGILAW 754 (AP)

Vucha Ramakoteswara Rao S/o Nagaiah v. Gade Veeranjaneyulu S/o Radhakrishna Murthy

2021-11-05

M.VENKATA RAMANA

body2021
JUDGMENT : M. VENKATA RAMANA, J. 1. The dispute in this second appeal is in respect of a lane described as ABCD in the plaint plan (Ex.A3) of 4 yards wide. 2. The appellant as the plaintiff claimed that in order to reach his property shown as AHKF in the plaint plan from Zilla Parishad road on the south, except this ABCD lane, there is no other access which he has been exclusively enjoying. His further claim is that the site in his occupation included certain portion therein which he had purchased from his brother Sri. Vucha Pitchaiah under the sale deed dated 25.04.1979. 3. The respondents 1 and 2 are in occupation of the property shown as KFPNML in the plaint plan. It is to the south of the property of the appellant. There is a wall shown as KF in the plaint plan separating these two properties. There is also Sri. Rama Temple as per the plaint plan shown as PSRN by the side of the respondents property. 4. The complaint of the appellant is that the respondents 1 and 2 without any manner of right encroached upon ABCD lane, who had obtained sale deeds in respect of their site showing excessive area than what was available on the ground and after filing the suit they also constructed a thatched shed encroaching into this ABCD lane though there was an order of interim injunction against them. 5. On such premise, the appellant requested for grant of permanent injunction against the respondents stating that the third respondent was intending to purchase the property from the respondents 1 and 2, restraining them from interfering with ABCD lane and his right of passage through this lane as well as for mandatory injunction directing the respondents to remove the obstruction in this lane. 6. The respondents 1 and 2 resisted the claim of the appellant disputing the area of the site of the appellant while asserting that their site is in accordance with the area mentioned in their title deeds. Asserting that they are in occupation of the property beyond KF wall, they further contended that there is a gully, which is the access to the appellant all along KG shown in the plaint plan to the north-west of this property. They also questioned the width of ABCD lane stating that it is only of 3 yards wide. Asserting that they are in occupation of the property beyond KF wall, they further contended that there is a gully, which is the access to the appellant all along KG shown in the plaint plan to the north-west of this property. They also questioned the width of ABCD lane stating that it is only of 3 yards wide. They further contended that this lane ABCD is meant for them, which their predecessors were enjoying and a wall AD was constructed preventing Sri. Pedana Reddaiah and others from enjoying this lane. They complained that the appellant occupied the northern portion of this lane to the east of his house, where he has been keeping paddy heaps, tethering cattle etc. Stating that they have right to use this lane, disputing the right claimed by the appellant, they objected the claim of the appellant. 7. On the pleadings, trial Court settled the following issues and additional issues for trial: 1. Whether the plaintiff is entitled for permanent injunction as prayed for? 2. To what relief? Additional issue: 1. Whether the plaintiff is entitled for mandatory injunction as prayed for? 8. The parties went to trial. The appellant examined himself as PW-1 apart from PW-2 and PW-3 in support of his contention while PW-4 is the advocate commissioner, who visited the suit site during trial. He relied on Ex.A1 to Ex.A9 and through PW-4 learned Commissioner Ex.C1 to Ex.C15 marked are also relied on by him. The respondents 1 and 2 examined themselves as DW-1 and DW-2 and DW-3 is one of their vendors in support of their contention while relying on Ex.B1 to Ex.B4. 9. On the material and evidence, learned trial Judge accepted the version of the appellant holding that the respondents 1 and 2 encroached into this lane towards east and decreed the suit as prayed granting permanent injunction and mandatory injunction against the respondents. 10. In the appeal preferred by the respondents against the decree and judgment of the trial Court, they were set aside and consequently, the suit was dismissed. 11. In these circumstances, this second appeal is presented. 12. Sri. E. Sambasiva Pratap, learned counsel for the appellants and Sri. V.S.K. Rama Rao, learned counsel for the respondents addressed their respective arguments. 13. During pendency of this second appeal, the first appellant died. 11. In these circumstances, this second appeal is presented. 12. Sri. E. Sambasiva Pratap, learned counsel for the appellants and Sri. V.S.K. Rama Rao, learned counsel for the respondents addressed their respective arguments. 13. During pendency of this second appeal, the first appellant died. His Legal Representatives being appellants 2 and 3 brought on record are pursuing this second appeal. The third respondent died similarly during pendency of this second appeal. Respondents 1 and 2 are stated to be his legal representatives. 14. This second appeal was admitted on 08.08.2003 on the following substantial questions of law: 1. Whether the relief of right of way and removal of the obstruction by way of mandatory injunction based on easementary right is an independent one and there is no need to seek the declaratory relief? 2. Whether easementary right can independently be exercised and reliefs can be sought on that basis, such as the relief sought in his suit. Seeking declaration in the absence of any personal right except easementary right over the suit scheduled property is unnecessary? 15. Location of ABCD lane and the properties in possession and enjoyment of the appellant as well as the respondents 1 and 2 depicted in Ex.A3 plaint plan are not in dispute. PW-4 Commissioner in execution of his warrant was assisted by a qualified surveyor. Along with the report of the Commissioner, a rough plan prepared by the surveyor is enclosed. It is on record, which is Ex.C11. The properties referred to above and depicted in Ex.A3 plaint plan are similarly shown in Ex.C11, including the structures projected from the properties of the respondents into ABCD lane. 16. This lane is made to appear as a blind lane. Admittedly wall is located as shown as AD in the plaint plan. Ex.C11 rough plan of the surveyor is showing a door in this wall AD, opening towards north. 17. This ABCD lane is shown in the title deed (Ex.A1) of the appellant. Ex.A2 is the registration extract of a Gift Deed dated 31.05.1902 executed by one Sri. Moosa Pitchaiah in favour of his nephew Sri. K.Nagaiah. Sri. Moosa Pitchaiah, donee under the original of Ex.A2 is one of the predecessors of the appellant. This Gift Deed reflected the lane towards east of the property covered by it. The parties are not in dispute in respect of Ex.A2 and the boundaries stated therein. Moosa Pitchaiah in favour of his nephew Sri. K.Nagaiah. Sri. Moosa Pitchaiah, donee under the original of Ex.A2 is one of the predecessors of the appellant. This Gift Deed reflected the lane towards east of the property covered by it. The parties are not in dispute in respect of Ex.A2 and the boundaries stated therein. DW-1 expressed ignorance in respect of this document. Thus, Ex.A2 is establishing that by the year 1902, this ABCD lane was in existence. Eastern boundary therein is described as gully being used by Pedana Reddaiah and others. The property of Sri. Pedana Reddaiah is obviously to the north of this lane, which is now in occupation of his son and successor Sri. Pedana Gopala Rao, as shown in Ex.A3 plaint plan. 18. Ex.A7 is the sale deed executed by Sri. K. Nageswara Rao and others in favour of Sri. K. Kotaiah and another dated 14.09.1958. There is also a reference to this lane towards east of this property as a gully. At the trial, on behalf of the respondents, no serious dispute is raised in respect of this document when it was introduced through PW-1. This sale deed is stated to be covering the predecessors of the vendors of the respondents 1 and 2 under Ex.B1 to Ex.B4. Therefore, the recitals in Ex.A7 cannot be disputed by the respondents and with reference to the boundaries so stated in Ex.A7 towards east are binding on the respondents. 19. Thus, existence of ABCD lane as contended for the appellant for more than 80 years prior to the institution of the suit is established. 20. However, this lane should be the access to reach the property of the appellant, in usual course by him and his predecessors. The respondents, as such cannot interfere with any part of ABCD lane. Having regard to its nature, everyone who has been using this lane has every right to every inch of this lane. It is the fundamental proposition of law. 21. It is an easement of necessity according to the appellant, since he did not have any other access to reach his house from the ZP road on the south. 22. The respondents are contending that there is a passage, which the appellant has been using, shown in Ex.C11 rough plan prepared by the surveyor to the west of the house of the appellant to reach the road leading to Tenali. 22. The respondents are contending that there is a passage, which the appellant has been using, shown in Ex.C11 rough plan prepared by the surveyor to the west of the house of the appellant to reach the road leading to Tenali. This is the passage, which the appellant has been using to take his carts and other material to his house, according to the respondents. Thus, they disputed the nature of user of ABCD lane by the appellant. 23. At the trial, the appellant deposed about this lane claiming that it ends up at his house, i.e. point KH shown in Ex.A3 plaint plan. Except the version of the respondents at the trial, which is highly interested, there is no other acceptable version in this respect. 24. In the Commission report, PW-4 stated that ABCD lane is the nearest possible passage to reach the ZP road on the south. Learned Commissioner also referred to the lane sought to be projected by the respondents to the south west of the property of the appellant, as the open site without describing it as a passage or gully. However, in Ex.C11, it is described as a lane, to extend up to ABCD lane leading to Tenali road, of 5 yards wide. 25. The attempt of the respondents is to project as if there is an alternative passage or lane for the appellant to use for his purposes and thus ABCD lane cannot be an easement of necessity. 26. In the circumstances of the case, it is hard to find that this lane ABCD is an easement of necessity. It is a passage or lane being used for over decades apparently by all the villagers to reach the properties on the north of ZP road. Thus, it has all the trappings of a public lane or passage over which neither the appellant nor the respondents can claim exclusive right. This ABCD lane is “ex jure naturae.” The manner by which walls are constructed surrounding the properties of these parties abutting this lane is a clear indicator, depicting its use and purpose. 27. When this lane thus is being used, the respondents cannot have any right to obstruct or object the appellant from using this lane. They did not have any right to encroach upon this lane in any manner including raising a structure as a thatched shed. 27. When this lane thus is being used, the respondents cannot have any right to obstruct or object the appellant from using this lane. They did not have any right to encroach upon this lane in any manner including raising a structure as a thatched shed. Learned trial Judge considered the material on record including oral and documentary evidence. Learned trial Judge mainly considered the deposition of DW-2, who is none other than the second respondent, holding it important. His statements at the trial are in the nature of admissions clearly establishing and supporting the case of the appellant. 28. The version of the appellant that the respondents encroached on to this lane by raising a thatched shed is depicted in Ex.C11 plan of surveyor. The second respondent as DW-2 also admitted raising this thatched shed extending into this lane. This admission as observed by learned trial Judge cuts at the root of the case of the respondents establishing that they encroached upon this lane. 29. DW-2 also stated that this lane is being used by PW-1, for taking cattle etc. 30. Learned trial Judge considered the testimony of DW-3 one of the vendors under Ex.B2 title deed in favour of the first respondent. He deposed in respect of the wall raised towards north as AD shown in the plaint plan. It is not in dispute that the appellant is using a part of this lane abutting his house towards east for keeping paddy, tethering cattle, storing manure etc. The complaint of the respondents is that apart from encroaching to such an extent, the appellant began to encroach further south by the side of their house beyond that portion of the wall of their house shown as FB in Ex.A3 plaint plan, which they objected. DW-3 deposed in that context supporting the testimony of DW-1 and DW-2. Though DW-3 stated that neither themselves nor their predecessors had no concern with this ABCD lane, the nature of its user, presents a picture otherwise. 31. Learned trial Judge himself had visited this lane in dispute, on personal inspection on 02.04.1995. He had personally observed the width of this lane being 4 yards and extension of the wall of the house of the respondents into this lane. 31. Learned trial Judge himself had visited this lane in dispute, on personal inspection on 02.04.1995. He had personally observed the width of this lane being 4 yards and extension of the wall of the house of the respondents into this lane. He also observed that such construction would obstruct passage of carts belonging to the appellant from the ZP road on the south and to his house through ABCD lane. 32. These observations of learned trial Judge upon personal inspection were not questioned at any stage during trial or in the appeal. 33. When the material on record including observations of learned trial Judge are supportive of the case of the appellant, it is clear from the user of this lane that the respondents cannot put up any structures obstructing its use by the appellant. It is also clear that the appellant has no right to appropriate that part of this lane in front of his house towards east for any purpose. Even otherwise, a wall at AD shown in the plaint plan with a door though indicates its nature as a thoroughfare even such wall could not have been raised. It appears none had taken raising such wall at AD seriously. 34. Learned appellate Judge failed to appreciate the material and evidence on record in proper perspective. The judgment in the appeal concentrated more on the area occupied by the parties of their properties and the measurements of these sites. Unnecessary details are stated in the judgment of the appellate Court without concentrating on the real issue. The evidence on record was not properly appreciated by the learned appellate Judge. 35. In the appeal, the nature of relief sought by the appellant without seeking declaration was canvassed which is also reiterated in this second appeal on behalf of the respondents. In this context, learned appellate Judge considered a judgment of this Court in Balamoni Kistanna vs. V. Narayana Reddy, 1982 (2) ALT 408 observing to the effect that having regard to nature of this dispute, the appellant should have sought the declaratory relief. 36. In the decision considered by learned appellate Judge, the facts were such that a suit for mandatory injunction was filed for removal of huts on the land against the defendants, who were described as the encroachers without requesting relief of possession, and declaration of right and title by the plaintiff. 36. In the decision considered by learned appellate Judge, the facts were such that a suit for mandatory injunction was filed for removal of huts on the land against the defendants, who were described as the encroachers without requesting relief of possession, and declaration of right and title by the plaintiff. Thus, in given facts and circumstances, it was observed that a suit for mere mandatory injunction is not maintainable without seeking declaration of title and possession. 37. Similar are not the facts and circumstances in the present case on hand. Established user of ABCD lane including by the appellant and his predecessors well over decades is on record and also highhanded acts of the respondents in causing obstruction to use this passage by raising a thatched shed. In those circumstances, when the right to use this ABCD lane is obstructed, the appellant is justified in stating that his legal right in terms of Section 38 of Specific Relief Act thus invaded requesting to prevent the respondents by means of a prohibitory injunction. Learned trial Judge is right in granting this relief to the appellant. 38. Similarly, the respondents did have an obligation towards the appellant, not to cause any obstruction in use of this passage and when they raised structure obstructing this passage including eves of 1½ feet. In terms of Section 39 of Specific Relief Act, the appellant is justified in seeking mandatory injunction for removal of this obstruction. Learned trial Judge appreciated this fact situation in proper perspective, while granting this relief favouring the appellant. 39. Therefore, in this backdrop of admitted and proved facts, declaration of right and interest in using passage by the appellant is unnecessary. Thus, this settled situation of nature of use of this ABCD lane gave such right to the appellant against the respondents for his reliefs. Therefore, the above ruling is not of any assistance to the respondents. Learned appellate Judge failed to perceive if the above ruling could be applied to the present situation, properly. 40. Therefore, while upholding the decree and judgment of the learned trial Judge, necessarily the decree and judgment in appeal should be interfered with in this second appeal. 41. Thus, on account of reversal of judgment of the trial Court by the learned appellate Judge since found inappropriate, there is justification for the appellant to approach this Court by means of this second appeal. 41. Thus, on account of reversal of judgment of the trial Court by the learned appellate Judge since found inappropriate, there is justification for the appellant to approach this Court by means of this second appeal. Though the substantial questions of law set out in the grounds of appeal stand in a different footing, relating to establishing easementary right, in the given circumstances and in the interests of justice, when interference of this Court is required in terms of Section 100 CPC, the same has to be applied. Such course is required to set right the injustice foisted on the appellant in the appeal. 42. In the result, this second appeal is allowed with costs restoring the decree and judgment of the trial Court while setting aside the decree and judgment of the appellate Court. Respondents are granted time till 31.12.2021 to remove the thatched shed and other structures from ABCD lane shown in the plaint plan. Otherwise, the appellant is at liberty to approach the trial Court by means of an execution petition to get the same removed. All pending petitions stand closed.