THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.987 of 2010 August 05, 2011 Between: Ramakurthy Udaybhaskara Rao, S/o.Venkataratnam ... Appellant And Uppalli Devadas (died) And others ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.987 of 2010 JUDGMENT: The unsuccessful plaintiff, in the trial Court as well as the first appellate Court, preferred this second appeal being aggrieved by the judgment and decree dated 29.5.2010 in A.S.No.25 of 2009 passed by the Court of the Principal Senior Civil Judge, Kakinada confirming the judgment and decree dated 18.1.2007 in O.S.No.72 of 1999 on the file of the Court of the II Additional Junior Civil Judge, Kakinada. In this judgment, the parties are referred to by their status in the suit. The plaintiff instituted the suit for mandatory injunction directing the defendants to close FCDE drain as shown in the plaint plan within a fixed time or in the alternative permitting the plaintiff to close the same in accordance with law at the cost of expense of the defendants. He alleged that he is the owner of ABCD plaint schedule property having purchased the same under registered sale deed dated 14.5.1975 (Ex.A1), that he is in possession and enjoyment of a wooden buddy erected by him on the south-west corner, that he constructed a thatched shed and carrying on business, and that the defendants 1 to 11 constructed a drain for the purpose of discharging sullage water from their houses upto FC point, which is shown as GHFCJI in the plaint plan. He also alleged that the defendants formed into unlawful assembly and removed the thatched shed causing damage to the plaintiff to a tune of Rs.10,000/-. The first defendant filed written statement and the defendants 13 and 14 adopted the same by filing memo. The first defendant contended that the plaint schedule property is Panchayat road, towards southern side of plaint schedule there was old katcha drain and that in the interest of public the Gram Panchayat passed resolution for construction of cement drain. Subsequently construction of pucca drain was undertaken in the Janma Bhoomi programme in the month of January, 1999. They also denied any title to the drain vesting in the plaintiff. During the trial, the plaintiff examined four witnesses and marked six documents. The defendants examined one witness and marked fourteen documents. Considering the evidence, the trial Court recorded a finding that the defendants proved the case that FCDE drain is Panchayat drain and that though the plaintiff got right over the plaint ABCD property only and, therefore, he has no right to seek mandatory injunction. On appeal, the appellate Court came to the conclusion that without seeking a declaration of title to FCDE drain, the plaintiff could not have sought for mandatory injunction. On reappreciation of the evidence, the appellate Court affirmed the findings of the trial Court. The Counsel for the appellant submits that both the Courts below erred in appreciating Exs.A1 and B4, which prove the title of the plaintiff and, therefore, the findings are erroneous. Nextly he would contend that except stating that the drain vests in the Gram Panhayat, the defendants did not produce any evidence and the observations made by the first appellate Court are unsustainable. There is no dispute that the suit was filed only for mandatory injunction. The defendants raised the plea that the drain was constructed, in the same place where earlier katcha drain was existed, as per the resolution of the Gram Panchayat. Therefore the burden to lead rebuttal evidence and prove the title to the disputed drain is on the plaintiff. He failed to discharge the same as observed by the first appellate Court. Without first seeking declaration of title, he could not have asked the Court for mandatory injunction directing the defendants to remove the drain. The finding of fact is supported by cogent and convincing evidence and that there are no reasons to interfere with the same. The second appeal is misconceived and is, accordingly, dismissed. _________________ (V.V.S. RAO, J) August 05, 2011 YS