Akki Tirupathaiah vs Yedlapalli Subba Rao
2024 Latest Caselaw 861 AP

Andhra Pradesh High Court - Amravati

Akki Tirupathaiah vs Yedlapalli Subba Rao on 1 February, 2024

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

               SECOND APPEAL No.1128 of 2010

JUDGMENT:

Plaintiff is the appellant in this appeal filed under Section

100 of Code of Civil Procedure (C.P.C.). Respondent No.1 is the

original defendant in the suit. Respondent Nos.2 and 3 are

added in this Court by virtue of orders dated 10.02.2020 in

I.A.No.2 of 2019.

2. O.S.No.768 of 2006 is a suit where the prayer of the

plaintiff was for a mandatory injunction seeking removal of two

taps erected at point H1 and L and pipeline erected between

these points in a length of 20 feet and a depth of 1 feet under

the ground as defendant made such arrangements by

encroaching into plaint schedule property. A further prayer was

made to fix the boundaries between both parties in accordance

with plaint plan. After due trial, learned I Additional Junior

Civil Judge, Guntur by a judgment dated 17.06.2009 decreed

the suit in favour of the plaintiff. Aggrieved defendant preferred

A.S.No.373 of 2009. Learned III Additional District Judge,

Guntur, by a reasoned judgment, allowed the appeal and set

aside the trial Court judgment and consequently dismissed

Dr. VRKS, J

O.S.No.768 of 2006. It is in those circumstances, the plaintiff

has preferred this second appeal.

3. On 03.02.2010 a learned Judge of this Court admitted the

second appeal on these two following substantial questions of

law:

1. Whether one has to compulsorily seek for declaration of title in all cases of mandatory injunction, even though when the dispute is not for title?

2. Whether the burden is only on the plaintiff to establish his right when it is causing public nuisance and obstructing the way or shifts to the defendant when the defendant claims that the land belongs to Gram Panchayat, he is entitled as a matter of right to illegally lay pipes without permission of Gram Panchayat?

An additional question that arises is:

3. Whether appellant made out a case for additional evidence prayed for in I.A.No.3 of 2019?"

4. The facts in which they came up for consideration require

a mention here. The schedule appended to the plaint described

an extent of 300 square yards consisting of a tiled house and a

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thatched shed and a hey-rick located in D.No.4-3-175 in

Lalpuram Village of Guntur District. The southern boundary is

shown as property of the defendant. Plaint narrates as to how

the plaintiff secured ownership and possession over the plaint

schedule property wherein he claimed to have got 150 square

yards out of it under a registered sale deed dated 15.04.1985

and claimed to have succeeded to the remaining 150 square

yards of the property. A plan is appended to the plaint

describing the plaint schedule property as within ABCDEFGH.

It is stated that on the west of this property there is panchayat

bazar. For access to that for the plaintiff there is a nadava in

AHFG which is exclusively meant for the plaintiff. The property

of the defendant was on the western side. The defendant had a

house and a compound wall. AH is the wall that divides the

properties of both parties. Defendant without any manner of

right over the nadava of the plaintiff laid the pipeline and fixed

the taps and thus, encroached into the property of the plaintiff.

The right to ingress and egress exclusively exercised by the

plaintiff is hindered by the acts of the defendant and therefore,

the suit.

Dr. VRKS, J

5. The defendant filed the written statement resisting the

claim stating that the nadava claimed by the plaintiff is not

exclusively owned by the plaintiff. Property of the defendant

situate on the south of the plaintiff's property. For the

defendant's property on northern side the eves space of the

house of the defendant extends over the wall and that eves

space exclusively belongs to the defendant and after obtaining

due permission from the panchayat, he laid the pipeline and

erected the taps within his own property. That the nadava

claimed is panchayat bazaar. That the defendant never

encroached on the property of the plaintiff. In fact, plaintiff was

tying his buffaloes in the property of the defendant at the eves

space and with a view to grab that this false suit is filed. He

sought dismissal of the suit.

6. Learned trial Court settled the following issues for trial:

1. Whether the plaintiff is in possession of the plaint schedule property?

2. Whether the plaintiff is entitled for mandatory injunction as prayed for?

3. To what relief?

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7. For plaintiff, PWs.1 to 4 testified and Exs.A.1 to A.7 were

marked. For defendant, DWs.1 to 3 testified and Ex.B.1 was

marked. In addition to that, Exs.C.1 to C.3 were marked

through PW.4 who was the advocate commissioner.

8. After hearing arguments on both sides and on considering

the material on record, the learned trial Court concluded that

the contention raised by the defendant that the disputed nadava

is a common lane belonged to the Gram Panchayat was not

established as he failed to file any documentary evidence in that

regard. It found that there is no other passage for the plaintiff

for his ingress and egress to the panchayat road. That the

defendant failed to file documents indicating that he obtained

permission from Gram Panchayat for laying water pipes through

the disputed passage. It found that the defendant had no

property beyond the northern side wall of his property. That

erecting such pipelines and taps caused disturbance to the

plaintiff and that is in violation of the neighbours' duty. That a

neighbour should not disturb, by his acts, the others. Since the

defendant illegally laid the pipes without any permission from

the Gram Panchayat, they must be removed and therefore,

mandatory injunction as prayed by the plaintiff had to be

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granted. It granted the relief of mandatory injunction. Be it

noted, the other relief in the plaint is for fixing boundaries

between the properties of both parties. The trial Court declined

to grant the said relief stating that since the plaintiff did not

seek declaration of title, such a relief could not be granted. The

judgment of the trial Court presumptively considered the matter

as if the dispute lane exclusively belonged to the plaintiff. The

focus of the trial Court do not indicate paying any attention to

the case set up in the plaint and as to whether plaintiff brought

enough evidence on record to establish the case pleaded. Its

focus was the pleadings of the defendant and as to how the

evidence led by defendant did not establish such plea.

9. Learned first appellate Court on hearing the submissions

on both sides and on considering the material on record, posed

for itself the following points for its consideration:

1. Whether the finding of the Court below that lane is private land of plaintiff and defendant has no right to lay pipeline, is sustainable on law and facts and if not the same is liable to be set aside?

2. Whether the finding of the Court below that plaintiff is entitled for mandatory injunction simplicitor without

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seeking for declaration of title is sustainable on law and facts?

3. The findings of the Court below that plaintiff is entitled for the relief prayed is sustainable on law and facts, if not the same is liable to be set aside and the suit of the plaintiff is liable to be dismissed?

10. In the appeal, the learned III Additional District Judge

reassessed the entire evidence and its effect on the disputed

contentions and disagreed with all the findings of the trial Court

and set aside that judgment and dismissed the suit. At

paragraph No.16 the learned first appellate Court stated that

the claim of the plaintiff that the nadava/lane exclusively

belongs to plaintiff and therefore his claim is that it is a private

lane and since that fact is disputed by the opponent the burden

lies on the plaintiff to prove that this disputed lane exclusively

belongs to him. It held that the plaintiff failed to prove it is a

private lane and failed to prove that he holds exclusive and

absolute rights over the disputed lane. It reached to these

conclusions based on the following pieces of evidence. It stated

that the total extent of the property claimed by the plaintiff is

300 square yards. On considering the evidence on record, the

extent of disputed lane is found to be 196 square yards. If both

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these are put together it comes to 496 square yards. As per the

evidence 300 square yards is shown in the plaint schedule and

it is there the properties are there and there is no evidence to

show that 196 square yards styled as nadava or lane forms part

of these properties. At any rate it is not the claim of plaintiff

that he owns 496 square yards. There is no evidence to show

that all the structures in the plaint schedule property are within

less than 300 square yards so as to accommodate 196 square

yards of lane as part of it. It further considered the evidence of

PW.3, the Sarpanch of the Village, who said that the disputed

nadava/lane is not the private lane of plaintiff and it is

panchayat lane. Be it noted here, the record does not indicate

plaintiff seeking permission of the trial Court to question his

own witness in cross-examination invoking Section 154 of the

Indian Evidence Act. Thus, plaintiff's own witness gave

evidence against the case of plaintiff. Learned first appellate

Court further considered the evidence of PW.2 and the evidence

of DWs.1 and 2 and concluded that not only the plaintiff but

also those individuals and others have been using this lane.

Based on assessment of this evidence, it held that the disputed

lane does not exclusively belong to the plaintiff. Learned first

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appellate Court then considered the evidence of the advocate

commissioner/PW.4 and the various reports and sketches filed

by her as per Exs.C.1, C.2 and C.3 and stated that the first

pipeline was found very much attached to the northern side wall

of the defendant. The second pipeline is away from it by 1½

inch. It further observed that the eves of the house of the

defendant have a width of 8½ inches. From that evidence it

recorded that the disputed pipelines and the taps were well

under the eves of the house of the defendant. It stated that over

the eves space of the defendant's house, the plaintiff could not

lay a claim. After citing two rulings of this Court, at paragraph

No.28 of its judgment, the learned first appellate Court stated

that a relief for mandatory injunction simplicitor as claimed in

the plaint cannot be granted at law since recovery of possession

is not prayed for. It recorded that what was sought to be

removed was found not within the property of the plaintiff and

therefore the relief prayed by the plaintiff could not have been

granted by the trial Court. Holding such view, it set aside the

judgment of the trial Court and dismissed the suit filed by the

plaintiff.

Dr. VRKS, J

11. Sri Tagore Yadav Yarlagadda, the learned counsel for

appellant, earnestly argued that the disputed nadava exclusively

belongs to plaintiff and his brother and at any rate it does not

belong to the defendant and it is not a public way or a

panchayat bazar. In the grounds it is specifically urged that

when there was no dispute with regard to title of the plaintiff,

there was clear error on part of the first appellate Court in

refusing to grant mandatory injunction on the sole ground that

the declaration of title was not prayed for. In the grounds, it is

specifically mentioned that the defendant failed to prove his

contention that the disputed nadava belonged to panchayat and

therefore, burden was on the defendant and as he failed to

prove it the trial Court properly appreciated it and granted the

relief for the plaintiff and the learned first appellate Court

erroneously negatived such a well reasoned judgment of the

trial Court. That the evidence on record clearly proved absence

of any right, title and possession for the defendant beyond his

northern wall. Trial Court's finding that the acts of the

defendant in laying pipes and taps was illegal as it was without

permission of Gram Panchayat and first appellate Court

erroneously set aside such judgment.

Dr. VRKS, J

12. Original defendant who was arrayed as respondent No.1

was served with a notice but he did not choose to appear and

contest. Respondent Nos.2 and 3 were subsequently added and

they were served with notices and appearance was made for

respondent No.2, but there has been no prosecution in defence

on all the earlier occasions when this matter was coming up for

hearing. Thus, on behalf of the respondents none argued.

13. It is in the above context of the facts, the substantial

questions of law raised have to be considered.

14. Point No.1:

"Whether one has to compulsorily seek for declaration of title in all cases of mandatory injunction, even though when the dispute is not for title?"

In the suit the appellant/plaintiff alleged that his property

was encroached into by the defendant/respondent and having

encroached into it he erected taps and pipelines and therefore,

sought a mandatory injunction for removal of them. Thus, the

admitted case of the plaintiff indicates that his property has

been in the occupation of defendant. Despite the fact that the

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defendant was contesting the title and ownership of the plaintiff

over the disputed area, the plaintiff did not choose to seek a

relief for declaration. Be that as it may. Despite the fact that

his property is under unlawful possession of defendant, the

plaintiff did not seek for the relief of recovery of possession.

During the course of arguments, against the two rulings cited in

the impugned judgment of the first appellate Court, no contrary

ruling is cited before this Court. At this juncture, one may

notice what the Hon'ble Supreme Court of India had stated in

Executive Officer, Arulmigu Chokkanatha Swamy Koil

Trust Virudhunagar v. Chandran 1. Paragraph No.35

contains the statement of law and therefore, the same is

extracted here:

"The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. Plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed

(2017) 3 SCC 702

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the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction under Section 100 C.P.C. could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit."

15. Thus, the law is very clear that in a case of this nature

failure to seek declaration and recovery of possession is a legal

hurdle in granting any relief to a suitor. Therefore, the

observations of the learned first appellate Court on principles of

law are correct. Hence, they do not require any interference.

Therefore, this point is answered against the appellant.

16. Point No.2:

"Whether the burden is only on the plaintiff to establish his right when it is causing public nuisance and obstructing the way or shifts to the defendant when the defendant claims that the land belongs to Gram Panchayat he is entitled as a matter of right to illegally lay pipes without permission of Gram Panchayat?"

Dr. VRKS, J

The point formulated speaks about public nuisance. That

sounds contrary to the very claim of the plaintiff since the

appellant/plaintiff has been claiming that it is over his own

property the respondent/defendant having erected pipelines and

taps caused nuisance to him which is only private nuisance.

The question raised requests the Court to see that since the

respondent/defendant claimed that the disputed pathway is a

pathway of Gram Panchayat, the burden is on the

respondent/defendant to prove it. Without there being any

evidence, a reasoned judgment of the trial Court was set aside

by the first appellate Court. For the following reasons, this

Court has to record that there is no merit in this argument.

17. In Kondiba Dagadu Kadam v. Savitribai Sopan

Gujar2, the Hon'ble Supreme Court of India reiterated the law

and held that the power of High Court sitting in second appeal

to disturb the findings of fact rendered by the first appellate

Court arise only if the High Court finds that in reaching to the

conclusions the first appellate Court acted contrary to the

mandatory provisions of applicable law or contrary to the law as

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pronounced by the Hon'ble Supreme Court of India or based on

inadmissible evidence or without any evidence. If the first

appellate Court arrived at factual conclusions based on

evidence, it does not confer jurisdiction on the High Court to

interfere with it except in the presence of instances as referred

earlier. Their Lordships further stated that a substantial

question of law is different from a substantial question of fact.

The findings of the first appellate Court and the approach of the

first appellate Court do indicate that it rightly placed burden of

proof on plaintiff/appellant first to prove that the disputed

nadava is a private lane as claimed by the plaintiff. After an

elaborate discussion of evidence and giving cogent reasons, it

found no material to agree with the plaintiffs' case and positively

held that the disputed lane/nadava is not private lane and is

not a property where plaintiff has any absolute or exclusive

rights. Those findings are based on evidence and are

reasonable and are the correct view of the matter and do not

require any interference. The claim of the defendant/

respondent that it is a public way was also positively found to

(1999) 3 SCC 722

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be correct and for that finding first appellate Court relied on the

very evidence of PW.3 and the evidence of DW.2 and the recitals

in Ex.B.1. Therefore, those findings were also recorded based

on evidence and they are supported by reasons. That cannot

also be disturbed. Even if the defendant failed to prove his

claim that the nadava is a public lane that by itself does not

entitle the plaintiff to seek relief. It is to overcome that the

appellant claims public nuisance which has never been the case

set up in the plaint or evidence led by the plaintiff/appellant. It

is in these circumstances; this Court finds no merit on part of

the appellant and the question formulated does not really arise.

Therefore, this point is answered against the appellant.

18. Point No.3:

"Whether appellant made out a case for additional evidence prayed for in I.A.No.3 of 2019?"

I.A.No.3 of 2019 is an application filed under Order XLI

Rule 27 C.P.C. by the appellant seeking to receive three

documents as additional evidence and mark them as Exs.A.8,

A.9 and A.10 in this appeal. Those documents are as follows:

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1. Office copy of legal notice dated 25.11.2014 along with acknowledgments.

2. Certified copy of sale deed document No.3990/2015 dated 07.05.2015.

3. Notarized deed of undertaking dated 09.05.2018 (Original).

19. During the pendency of the appeal, the sole defendant

and his family members by executing a registered sale deed sold

out the properties to Sri K.Subba Rao and Sri S.Rama Rao.

Those two purchasers were impleaded in this appeal as

respondent Nos.2 and 3. The property which the defendant sold

is the property of the defendant. The suit does not relate to the

property of the defendant as such. Therefore, the purchasers of

the property of the defendant cannot be said to be lis pendens

purchasers. Learned counsel submits that the new

purchasers/respondent Nos.2 and 3 have executed an oppudala

patram dated 09.05.2018 and got it notarized and in this

document executed in favour of the present appellant they have

mentioned that in the property they purchased from the original

defendant though the boundary is stated to be 36 foot, on

taking measurements they found it is only 34.6 and hence they

bound themselves stating that in the event of further alienation

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of this property by them, they would alienate only 34.6 and they

have no claim over anything that is lying adjacent to their

northern wall. They further mentioned that what was there

adjoining the northern wall belonged to the plaintiff/appellant.

Learned counsel seeks this document to be brought on record

as additional evidence. Be it noted, the presence or absence of

this document has no bearing for taking a decision in this

second appeal. This subsequently emanated document does

not require consideration in this appeal. Therefore, to take it as

additional evidence there is no legal need. The submission of

the learned counsel is that these admissions of respondent

Nos.2 and 3 would vindicate the appellant's claim that from the

northern wall of the defendant house the property belonged to

the appellant and respondent Nos.2 and 3 had confined their

own rights to the south of this northern wall and in such an

event the trial Court decree may be restored. Be it noted that a

private settlement arrived at among the parties can be worked

out by the parties themselves in pursuance of what is

mentioned in the above said notarized document. The

appellant/plaintiff is at liberty to obtain a relinquishment deed

from the current owners and with their consent he can also take

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reasonable steps over the disputed pipeline and taps if law

permits. What parties have outside concluded is in the form of

a compromise and nothing prevented the parties to come over

here and have the dispute resolved by way of a compromise.

This very document indicates the terms between appellant and

respondent Nos.2 and 3. Therefore, nothing prevented them to

have the compromise recorded but that is not done. Before the

trial Court and the first appellate Court these respondent Nos.2

and 2 are not parties. It is in these circumstances, this

application has no merit and is liable to be dismissed and is

dismissed accordingly.

20. In the result, this Second Appeal is dismissed.

Consequently, the impugned judgment dated 16.07.2010 of

learned III Additional District Judge, Guntur in A.S.No.373 of

2009 stands confirmed. Appellant and respondent Nos.2 and 3

are at liberty to work out their own remedies in terms of the

notarized deed of undertaking dated 09.05.2018 if they so

desire and the decree of the first appellate Court is not a legal

hindrance for any such endeavour on part of them. There shall

be no order as to costs.

Dr. VRKS, J

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 01.02.2024 Ivd

Dr. VRKS, J

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

Date: 01.02.2024

Ivd