THE HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.1011 of 2011 JUDGMENT: The appellants, who are defendants in O.S.No.509 of 2002, ﬁled this second appeal against the judgment and decree, dated 31.03.2011 passed by VII Additional District and Sessions Judge (Fast Track Court), Vijayawada, in allowing the appeal preferred by the respondents/plaintiﬀs and decreeing the suit ﬁled for permanent injunction in O.S.No.509 of 2002 on the ﬁle of II Additional Junior Civil Judge, Vijayawada. For the sake of convenience, the parties hereafter will be referred to as they were arrayed in the suit. The facts, in brief, which are necessary for disposal of this appeal, may be stated as under: The ﬁrst respondent/plaintiﬀ instituted the above suit for permanent injunction restraining the defendants from interfering with his peaceful possession, enjoyment and management of the plaint ‘A’ schedule premises and agricultural lands through ‘B’ schedule pathway, being used as such since 1979 without any obstruction whatsoever from any one. The plaintiﬀ has got immovable properties at Enikepadu and the same were acquired by him in partition with his brothers and also by purchasing some other properties by the side of the plaint schedule property. Plaint ‘A’ schedule property is a rice mill of the plaintiﬀ in an extent of Ac.0.50 cents and plaint ‘B’ schedule property is a 15 feet width pathway left by the ﬁrst defendant in the year 1977 and the rice mill was constructed in the year 1979. On the eastern side of ‘A’ schedule property, the plaintiﬀ got Acs.3.75 cents of agricultural land. The ﬁrst defendant along with the brother of the plaintiﬀ gave a letter of No Objection on 13.10.1977 to form 15 feet width road to the plaintiﬀ’s rice mill and since then the plaintiﬀ was enjoying the pathway by taking the vehicles to the National Highway etc., without any obstruction. While so, defendants 1 and 2 started demanding the plaintiﬀ to purchase an extent of Ac.0.04 cents of poramboke land abutting National Highway No.5 located towards western side of the existing pathway, over which defendants 1 and 2 have no title. When the plaintiﬀ refused to accept their illegal demand, defendants 1 and 2 bore grudge against him and began to threaten that they will not allow him to use the pathway as shown in plaint ‘B’ schedule. The defendants started putting blocks on the pathway dumping wastage and garbage causing serious inconvenience to the plaintiff and his tenants. Hence, the suit. The ﬁrst defendant, who is the father of the second defendant, ﬁled a written statement resisting the claim of the plaintiﬀ and the same was adopted by the second defendant. In the said written statement, it is stated that the plaintiﬀ neither acquired easementary right nor tile over ‘B’ schedule pathway and as such, without seeking a declaratory relief, this suit is not maintainable. It is further stated that the ﬁrst defendant and the brother of the plaintiﬀ gave a letter of understanding on 30.10.1977 reporting ‘No Objection’ to form 15 feet width road through the land bearing Survey No.207/5H, I, J and 207/6 A & B belonging to them on condition that the plaintiﬀ agreed to receive an extent of Ac.0.09 cents of severance of land left after acquisition for extending NH-5 road belonging to the ﬁrst defendant, which is described as poramboke in the plaint, and agreed to give Ac.0.27 cents of land belonging to him in Survey Nos.207/5B, 5D, 5F and 5G situated on the eastern side of ‘A’ schedule rice mill and ‘B’ schedule pathway, which clearly born out from the Parata Agreement entered between the plaintiﬀ and the family members of the ﬁrst defendant on 12.04.1978, which was admitted by the plaintiﬀ himself in O.S.No.361 of 1991 on the ﬁle of I Additional Junior Civil Judge, Vijayawada and that inspite of repeated demands made by the ﬁrst defendant and his family members, the plaintiﬀ with a malaﬁde intention avoided to deliver possession of Ac.0.27 cents of land as agreed in the said Parata Agreement and ﬁled the present suit for permanent injunction without seeking a declaratory relief, and hence, the same is not maintainable. The alleged letter dated 13.10.1977 executed by the ﬁrst defendant and the brother of the plaintiﬀ is unenforceable document as the 15 feet road was not conveyed to the plaintiﬀ through any registered document and as such the plaintiﬀ is not entitled to permanent injunction and that merely because the letter of understanding dated 13.10.1997 was admitted in evidence in O.S.No.361 of 1999 and the same was marked, permission, if any, granted to the plaintiﬀ is only a licence, but he cannot get a right to enjoy the said property. Based on the above pleadings, the following issues were settled by the trial Court: “1. Whether the suit is liable for dismissal for not seeking relief of declaration? 2. Whether the plaintiﬀ has easement right over ‘B’ schedule property? 3. Whether the plaintiﬀ is entitled for permanent injunction as prayed for? 4. To what relief ?” Based on the above issues, the parties went into trial. On behalf of the plaintiﬀ, P.Ws.1 to 3 were examined and Exs.A.1 to A.4 were marked. Though P.W.4 ﬁled his chief aﬃdavit, he did not turn up for cross-examination, and hence, the chief evidence of P.W.4 was eschewed. On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B.1 to B.15 were marked. The trial Court, on appreciation of the oral and documentary evidence, answered issue No.1 in favour of the defendant holding that the plaintiﬀ’s prayer for the relief of permanent injunction against the real owner without he being declared as a owner of plaint ‘B’ schedule property is not maintainable. On issue No.2, it was held that it was unnecessarily framed without therebeing any pleading and ultimately answered issue No.3 in favour of the defendants holding that there are two other alternative ways to the plaintiﬀ to reach plaint ‘A’ schedule property and accordingly dismissed the suit. Aggrieved by the same, the plaintiﬀ carried the matter in appeal. During the pendency of the appeal, the plaintiﬀ died and hence, his legal representatives were brought on record. The lower appellate Court, on re- appreciation of the oral and documentary evidence, allowed the appeal. Hence, this second appeal by the defendants. Learned counsel for the appellants/defendants reiterated the very same contentions that the respondents/plaintiﬀs have no right over ‘B’ schedule property of 15 feet pathway, which admittedly belongs to the defendants; that in the absence of any pleading to the eﬀect of easementary right, the lower appellate Court is not justiﬁed in allowing the appeal decreeing the suit and that there are two other pathways available to the plaintiffs to reach the rice mill, which is evident from the evidence adduced by the parties, and therefore, the plaintiﬀs are not entitled to injunction against the defendants. However, he fairly contends that with regard to the grant of injunction against ‘A’ schedule property, the defendants have no objection, but they are aggrieved only against decreeing the suit granting injunction with regard to ‘B’ schedule pathway. The evidence adduced on behalf of the plaintiﬀs, particularly, P.W.3 shows that there was another pathway to reach plaint ‘A’ schedule property from its northern side and that earlier there was one more way to reach plaint ‘A’ schedule property, but the same was closed, which goes to show that there was alternative pathway for the plaintiﬀs to reach plaint ‘A’ schedule property. However, it is not in dispute that the right of the plaintiﬀs to use ‘B’ schedule pathway to reach ‘A’ schedule property came to them pursuant to the No Objection letter dated 13.10.1977, which can be treated as a licence. In view of the same, unless the defendants terminate the agreement/licence granted in favour of the plaintiﬀs, they cannot obstruct the usage of pathway, which the plaintiﬀs are using since 1978 till the date of ﬁling of the suit. Hence, no question of law, much less substantial question of law arises for consideration in this second appeal. The second appeal is accordingly dismissed. There shall be no order as to costs. _________________ A. GOPAL REDDY, J Date: 11.11.2011 va