THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.1194 of 2010 JUDGMENT: The legal representative of the sole plaintiff in O.S.No. 525 of 1986 on the file of the Principal Junior Civil Judge, Addanki, is the appellant. The suit was filed for the relief of mandatory injunction directing the respondents to remove the shed constructed in plot-B in between X, X1, X2 and X3 shown in the suit plan and for perpetual injunction restraining the respondents from putting any obstruction in plot-B in future. The appellant pleaded that he owns a plot of land in survey No.1044 of Addanki Village, abutting a road marked as ‘Y’ in the plaint plan. It is stated that by treating the portion abutting the road as Government poramboke, the respondents have constructed sheds, blocking the access of the appellant to the bazaar. The respondents opposed the suit by filing the written statement. They pleaded that the appellant has no right of access to the road marked as ‘Y’ and that area occupied by them is a Government poramboke and that steps for grant of house site patta, are pending. The trial Court dismissed the suit through judgment dated 16.04.2004. A.S.No.15 of 2004 filed by the appellant in the Court of Senior Civil Judge, Addanki, was dismissed on 31.03.2009. Hence, this second appeal. Heard Sri M.S.N.Prasad, learned counsel for the appellant. The trial Court framed three issues for its consideration, viz., i) “Whether the plaintiff is entitled for mandatory injunction against defendants for removal of shed shown as X, X1, X2 and X3 of the plaint plan? ii) Whether the plaintiffs are entitled for permanent injunction against defendants over plot B for their ingress and egress from A1 portion to Y marked bazaar? iii) Whether the suit is not maintainable without the relief of declaration and possession?” On behalf of the appellant, PWs.1 to 8 were examined and Exs.A.1 to A.14 were filed. On behalf of the respondents, DWs.1 to 4 were examined and Exs.B.1 to B.9 were filed. In addition to that, the documents in ‘X’ and ‘C’ series were also taken on record as X.1 to X.4 and C.1 to C.3. The Specific Relief Act provides for the relief of perpetual injunction as well as mandatory injunction. The perpetual injunction is claimed mostly to protect the existing state of affairs and a plaintiff in such a suit need not establish his title to the property. It would be sufficient that the possession over the property, or the existence of a particular state of affairs, is proved and the Court could be inclined to grant the relief to ensure that the same state of affairs continues, unless it is altered according to the procedure prescribed by law. Title to the property need not be proved in suits of that nature. The relief is mostly prohibitory in nature, restraining the defendant from invading the rights of the plaintiff. Suits for the relief of mandatory injunction, however, stand on a different footing. Whenever the plaintiff wants the defendant to do something positive, either for removal of any structure, or to bring about any other state of affairs, it must be preceded by a declaration as to his entitlement to do so. It is only when the right of the plaintiff is declared by the Court that, the relief mandatory injunction can be granted as an ancillary, or consequential relief. It is not at all permissible in law for a plaintiff to claim the mandatory injunction without seeking the relief of declaration of his rights. That is what exactly has happened in the instant case. The appellant has chosen to claim the perpetual injunction as well as mandatory injunction. The perpetual injunction could not have been granted in isolation, because the construction was already made. As a matter of fact, it was claimed to prevent the respondents from making construction, after the existing one is removed. The removal of the existing structure can be sought only through a decree for mandatory injunction. That, in turn, needed a declaration of his rights, vis-à-vis the property. The appellant did not claim any ownership right over the property in question. He wanted to have an access to the road. The question as to whether the appellant has right of access to the road, and if so, whether the respondents have any superior rights to oppose it, could have been determined, if only the relief of declaration was sought. Since such a relief was not sought, the trial Court and lower Appellate Court had no alternative except to dismiss the suit and the appeal, respectively. There are no merits in this second appeal and it is accordingly dismissed. It is however, observed that, in case the appellant is otherwise entitled to seek the relief of declaration of his right and the consequential mandatory and perpetual injunction, the dismissal of the suit, or the appeal arising out of it, shall not come in the way. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J. Dated: 21.07.2011 GJ