Vucha Ramakoteswara Rao vs Gade Veeranjaneyulu
2021 Latest Caselaw 4522 AP

                                                                      MVR,J
                                                           S.A.No.760 of 2003
                                    1

              HONOURABLE SRI JUSTICE M. VENKATA RAMANA

                    SECOND APPEAL No.760 of 2003
JUDGMENT:

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, MVR,J S.A.No.760 of 2003

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. 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, the 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

P.W.1 apart from P.W.2 and P.W.3 in support of his contention while

P.W.4 is the advocate commissioner, who visited the suit site during MVR,J S.A.No.760 of 2003

trial. He relied on Ex.A1 to Ex.A9 and through P.W.4 learned

Commissioner Ex.C1 to Ex.C15 marked are also relied on by him. The

respondents 1 and 2 examined themselves as D.W.1 and D.W.2 and

D.W.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.

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:

MVR,J S.A.No.760 of 2003

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. P.W.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. D.W.1 MVR,J S.A.No.760 of 2003

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 P.W.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.

MVR,J S.A.No.760 of 2003

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. 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, P.W.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.

MVR,J S.A.No.760 of 2003

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. Learned trial Judge

considered the material on record including oral and documentary

evidence. Learned trial Judge mainly considered the deposition of

D.W.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 D.W.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. D.W.2 also stated that this lane is being used by P.W.1, for taking

cattle etc. MVR,J S.A.No.760 of 2003

30. Learned trial Judge considered the testimony of D.W.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. D.W.3 deposed in that context supporting the testimony of

D.W.1 and D.W.2. Though D.W.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. 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 MVR,J S.A.No.760 of 2003

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 v.

V.NARAYANA REDDY 1 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. Thus, in given facts and circumstances,

1982(2) ALT 408 MVR,J S.A.No.760 of 2003

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 1 1/2

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.

MVR,J S.A.No.760 of 2003

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.

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.

___________________ M. VENKATA RAMANA, J Dt: 05.11.2021 Rns MVR,J S.A.No.760 of 2003

HON'BLE SRI JUSTICE M. VENKATA RAMANA

SECOND APPEAL No.760 OF 2003

Date:05.11.2021

Rns