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2023 DIGILAW 1175 (AP)

Sanaboina Satyanarayana v. Cherukuri Raveswari

2023-08-08

R.RAGHUNANDAN RAO

body2023
JUDGMENT 1. The appellants are the defendants 6 to 9 in O.S.No.61 of 2012 on the file of Principal Junior Civil Judge, Palakol. The 1st respondent is the plaintiff. 2. The 1st respondent had filed O.S.No.61 of 2012, for mandatory injunction, for removal of the houses and other structures constructed by the appellants herein on the road margin and puntha in R.S.No.110/3 of Sangamcheruvu Village adjoining the R & B road passing through R.S.No.110/1 from Palakol to Myzarugunta. It is the case of the 1st respondent that she had agricultural land in R.S.No.112/2, 2-A and R.S.No.111/2C of Gorinthada Village which is hamlet of Sangamcheruvu Village. The 1st respondent contends that her access to the R & B road is being affected by the constructions made by defendants 6 to 9. It is the further contention of 1st respondent that she had approached the officials in the area, who are arrayed as defendants 1 to 5 in the suit, for removal of these encroachments. As the defendants 1 to 5 did not take any action, the 1st respondent moved the suit. 3. The appellants herein, who are defendants 6 to 9 filed their written statements and also participated in the trial by being examined as D.Ws. 4 to 8. 4. The stand of the appellants had been that they had not encroached into the road margin and that their constructions were not illegal. The further defence taken by the appellants is that the 1st respondent had access to her land from various directions and that the alleged encroachment by the appellants would not in any manner affect her ingress and egress into her land from the road and consequently there was no requirement to remove the structures or houses of the appellants. 5. The trial Court, after completion of trial and consideration of the respective submissions of the parties, had allowed the suit by way of decree and judgment dated 11.10.2017. 6. Aggrieved by the said judgment and decree, the appellants had moved the Court of the X Additional District Judge, Narasapur, by way of A.S.No.39 of 2017. This appeal came to be dismissed on 14.02.2023. Thereupon the appellants have approached this Court, by way of the Second Appeal. 7. 6. Aggrieved by the said judgment and decree, the appellants had moved the Court of the X Additional District Judge, Narasapur, by way of A.S.No.39 of 2017. This appeal came to be dismissed on 14.02.2023. Thereupon the appellants have approached this Court, by way of the Second Appeal. 7. Sri K.Chidambaram, learned Senior Counsel appearing for Sri T. Sai Surya would contend that the suit as framed by the 1st respondent is not maintainable as a mandatory injunction cannot be granted without seeking a declaration of title and a declaration that the rights of the plaintiff are affected by the alleged encroachments. He would further submit that there is no finding given by either the trial Court or appellate Court that the appellants had encroached into the road margin of the R & B road. He would submit that in such circumstances, the judgments of both the trial Court and the appellate Court require to be set aside. He relied upon the judgment of a learned Single Judge of the combined High Court of Andhra Pradesh in L.Narasimha Reddy vs. L.Yella Reddy, 2008 (2) ALD 142 :: 2010(5) ALT 784 for the proposition that a mandatory injunction cannot be sought without seeking a declaration of rights. 8. Sri M. Santosh Reddy, the learned counsel appearing for the respondents would submit that there is a finding by the appellate Court, on the basis of the admissions made by the defendants, as D.Ws.4 to 8, that the defendants (appellants herein) had encroached on to the road margin while constructing their houses/structures. He would draw the attention of this Court, paragraphs 25 to 55 wherein the extracts of the said evidence has been set out. 9. Sri M. Santosh Reddy would also rely upon a judgment of the learned Single Judge of the combined High Court of Andhra Pradesh reported in Josyula Hanuma Venkata Rao vs. Nandam Subbarayudu and others., 1992 (3) ALT 375 and the judgment of another learned Single Judge of the combined High Court of Andhra Pradesh in Thummalapenta Seetharamaiah vs. Ulchi Venkateswarlu and Others., 2010(6) ALD 495 to contend that no person is entitled to encroach on to any public road and it would be open to any person to seek relief against such encroachments by way of seeking the relief of mandatory injunction for removal of encroachments on the road margin. He would submit that the judgment relied upon by the learned Senior Counsel arose in the case of a dispute relating to a private passage whereas the present case arises on the question of encroachment on to public roads and public road margin. He would also point out that the learned judge who had delivered the judgment in the case of L.Narasimha Reddy vs. L.Yella Reddy had also delivered the subsequent judgment relied upon by Sri M. Santosh Reddy in the case of Thummalapenta Seetharamaiah vs. Ulchi Venkateswarlu and Others., wherein the learned Single Judge was pleased to hold, following the Full Bench judgement of the combined High Court in Sataraboina Someswara Rao vs Sangasetti Tirupathamma and others, 1989(1) ALT 36 that any citizen can move the Court for the relief of mandatory injunction for removal of encroachments on road margins. He would also draw the attention of this Court to the paragraph in Sataraboina Someswara Rao vs Sangasetti Tirupathamma and others case, wherein the Full Bench had held that- 'In my opinion, the said principle also involves public policy. No person can be allowed to occupy a portion of a public road, a highway or even a public pathway, and argue that even after his encroachment there is sufficient space left for public to pass by. He cannot be the judge of the requirements of the public, nor can he decide for himself what extent must be left for public use and what extent must be occupied by him. At this rate, anybody will be free to occupy a portion of such public streets, highways and roads with the specious argument that there is still space left for public to pass by. Slowly these encroachments may become permanent. It is evident that such a course cannot be permitted. It is true that Section 39 expressly speaks of discretion in the Court in the matter of granting a mandatory injunction; but, the said discretion has to be exercised in accordance with law and having regard to the facts and circumstances of a given case. Maybe that granting a mandatory injunction would result in eviction of the poor people living in the huts, or the displacement of the school which is said to be running there for the last several decades; but that can be taken care of by making appropriate directions.' 10. Maybe that granting a mandatory injunction would result in eviction of the poor people living in the huts, or the displacement of the school which is said to be running there for the last several decades; but that can be taken care of by making appropriate directions.' 10. In these circumstances, this Court would have to accept the contentions of the learned counsel for the 1st respondent that there is a clear finding of fact relating to the encroachment of road margin by the appellants herein and that a person can always seeks the relief of removal of encroachments, by way of a mandatory injunction, in case where the encroachments take place on public roads or public road margins. 11. Accordingly, this Court does not find any merits in this Second Appeal and dismissed. No costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.