IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE NINTEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT: HON'BLE SRI JUSTICE P. SWAROOP REDDY SECOND APPEAL No.863 OF 2003 Between: Smt. Sunitha Bai ..... Appellant AND Smt. Rajashree & 13 others .....Respondents HON'BLE SRI JUSTICE P. SWAROOP REDDY SECOND APPEAL No.863 OF 2003 JUDGMENT: This Second Appeal is filed by the plaintiff Smt. Sunita Bai against the judgment and decree dated 29-08-2002 in A.S. No.119 of 2002 passed by the learned Chief Judge, City Civil Court, Hyderabad reversing the judgment and decree dated 31-12-2001 in O.S. No.4925 of 1994 passed by the learned IV Junior Civil Judge, City Civil Court, Hyderabad. 2. For the sake of convenience, the parties herein are referred to as arrayed before the trial Court. 3. The facts relevant for disposal of this appeal are as follows: a) Plaintiff is the owner of plot bearing No.84 in Survey No.403 situated at Road No.2, Banjara Hills, Hyderabad, hereinafter referred to as “suit plot”, purchased by her under a registered sale deed dated 02-01-1989 and since then she has been in possession and enjoyment of the same. There is a 30’ wide road on the Southern side of the suit plot as a sub-road to Road No.2, Banjara Hills and that sub- road alone is the access to that plot for ingress and egress to the plaintiff and she has been enjoying the same from the date of her purchase. b) Defendants, who are neighbours of the plaintiff, commenced construction of group houses and as they violated rules, plaintiff filed a writ petition and directions were given to the Municipal Corporation of Hyderabad. While so, defendants encroached on the suit plot and installed a transformer, plaintiff filed a writ petition and on dismissal of the same, she preferred an appeal and the same is pending. c) While the matter stood thus, according to the plaintiff, defendants are trying to encroach upon the 30’ wide road on the Southern side of the suit plot and in case the same is occupied she would not have any passage/access. Further, defendants are trying to install a gate and raise a wall abutting the suit plot to close her passage to the suit plot permanently. d) The case of the defendants is that the suit is filed by the plaintiff to harass them. They have purchased two plots bearing Nos.83 and 84, admeasuring 5417 Square yards, in Survey No.403/24 under a registered sale deed and after obtaining permission from the Municipal Corporation, started construction of group houses. One Roop Charan Agarwal, who purchased a plot along with the plaintiff, filed a suit in O.S. No.2896 of 1991 and an Advocate Commissioner was appointed who reported that the defendants have not encroached the property of Roop Charan and the plaintiff. Defendants have not encroached the road on the Southern side of the suit plot, in fact, there is no road at all and that they are constructing the walls in their own land. 4. Based on the rival pleadings, the following issues were framed by the trial Court: 1. Whether the plaintiff is entitled for declaration as prayed for ? 2. Whether the plaintiff is entitled for consequential perpetual injunction against the defendants as prayed for? 3. To what relief ? 5. On behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A-1 to A-26 were marked. On behalf of the defendants, DWs.1 and 2 were examined and Exs.B-1 to B-16 were marked. 6. Advocate Commissioner was examined as CW.1 and through him Exs.C-1 to C-3, report of the Advocate Commissioner, rough sketch etc., were marked. 7. Based on the material on record, the learned trial Judge decreed the suit, which stood amended as on the date of judgment. Aggrieved of the trial Court judgment, defendants filed the impugned first appeal and the learned Chief Judge, City Civil Court, Hyderabad reversing the finding of the learned trial Judge, allowed the appeal suit and dismissed the original suit. 8. The substantial questions of law though not substantially raised in the grounds of first appeal, but considered by the lower appellate Court are with regard to (i) easementry right of the plaintiff and (ii) necessity of easement also, as the case of the plaintiff is that the only passage to the suit plot is being encroached and closed by the defendants. 9. Now the point for consideration is whether there are any grounds for allowing the appeal ? 10. When the matter was posted for final hearing, there was no representation for the defendants, as such, it was directed to be posted today under the caption “for orders”. But, still, today also there is no representation for the defendants. 11. Hence, heard the learned counsel for the plaintiff - appellant. 12. Two points that arise for consideration in this second appeal are; 1) Whether 30’ wide road on the Southern side of the suit plot of the plaintiff was existing and it was closed by the defendants ? 2) Whether the plaintiff is entitled to any right of easement or easement of necessity ? Point Nos.1 and 2: 13. The record reveals that on the Southern side of the suit plot, there is a 30’ wide road and the same is claimed in the plaint by the plaintiff, but the defendants have not denied it in the written statement. Admissions of the defendants in the cross-examination revealed that 30’ wide road on the Southern side of the suit plot is the only passage for the plaintiff to reach that plot. 14. The contention of the plaintiff that Exs.A-3 and A-4, approved lays outs, issued by the Municipal Corporation show existence of 30’ wide road adjacent to the Southern side of the suit plot and the same is averred in paragraph Nos.1 to 3 of the plaint by the plaintiff, but the same is specifically not denied by the defendants in their written statement and DWs.1 and 2 have also accepted that the plaintiff has no other way except 30’ wide road. 15. The case of the defendants is that 30’ wide road is existing on the Western side of the suit plot but not on the Southern side and the Southern side road exclusively belong to them and is within their boundary. 16. In the original written statement of the defendants, there is no plea that towards Southern side of the suit plot, road for the plaintiff does not exist. 17. In the cross-examination of DW.1, the General Power of Attorney of defendants, he stated that Ex.A-3 is the sanctioned layout of the Municipal Corporation and as per that layout 30’ wide road towards Southern side of the suit plot exists. He further admitted that as per Ex.A-2, plaintiff has access to that 30’ wide road. Report of the Advocate Commissioner – CW.1 and his evidence also reveals the same. 18. DW.2 admitted that there is no reference in Ex.B-16 that 30’ wide road towards Southern side of the suit plot is approved as exclusively belonging to the defendants. Ex.B-16 is the approved layout in respect of the proposed construction of the defendants. When PW.1 has stated that there is no other way to the suit plot except Southern side road, the same is not disputed and as already referred even DWs.1 and 2 have admitted the same. Nothing is suggested to PW.2, in the cross-examination, saying that plaintiff has any other passage to reach the suit plot. DWs.1 and 2 did not depose that the plaintiff has any alternative passage to the suit plot. 19. The record also reveals that in spite of there being injunction order against the defendants, they have erected barbed wire and a wall closing the passage to the suit plot. 20. Thus, it has to be accepted that 30’ wide road on the Southern side of the suit plot exists and the defendants have closed the same. 21. The admissions made by DWs.1 and 2 show that the plaintiff has no other passage except the 30’ wide road on the Southern side of the suit plot. Further more, the observations of the learned appellate Judge that the plaintiff has purchased the property only recently, as such, she cannot have any easementry right, is erroneous as her predecessor in title must have enjoyed the right of passage by way of easement. 22. In spite of an elaborate well-considered judgment of the trial Court, the lower appellate Court has erroneously reversed the same without proper reasoning by the impugned judgment, as such, the same is liable to be set aside and the second appeal is liable to be allowed. Thus, point Nos.1 and 2 are answered. 23. Accordingly, the Second Appeal is allowed granting mandatory injunction in favour of the plaintiff directing defendant Nos.1 to 13 to remove the gate and any other structures on the Southern side of the suit plot where 30’ wide road is existing so that there may not be any obstruction for the plaintiff to have access to the suit plot. No order as to costs. ______________________ P. SWAROOP REDDY, J August 19, 2009. NOTE: Furnish C.C. of the order by 21-08-2009 (B/O) PV