THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY SECOND APPEAL No.521 of 2011 JUDGMENT: The plaintiffs in O.S.No.959 of 2001 in the Court of Principal Junior Civil Judge, Ongole are the appellants. The suit was filed for the relief of declaration to the effect that they have a right to access from their lands shown as A1, A2 and A3 in the plaint plan to the nearby road, across the portion marked as A4 and for consequential perpetual injunction restraining respondents 1 to 3 from interfering with their rights. The suit was initially filed by the deceased-1st appellant. During the pendency of the suit, he died and his sons, appellant Nos. 2 and 3 and wife, appellant No.4 were brought on record. It was stated that between the public road and their lands, there existed a donka passing through the land owned by the Government. Respondents 1 to 3 are said to be the owners of the land on the southern side of the land owned by the appellants. It was also stated that due to the rivalry that has arisen in the light of the elections that took place in that village, respondents 1 to 3 started obstructing the access of the appellants to the road, which passes on the western side. Respondents 1 to 3 contested the suits by filing a written statement. They traced the ownership and rights of themselves and the appellants vis-à-vis the lands in the locality. They have also made a reference to the suits filed by them on previous occasions as regards enjoyment of rights over the land. It is stated that the appellants too have access to the road and as regards other portion, which is shown in detail in the plan appended to the written statement, DKT pattas were issued by the revenue authorities, respondents 4 and 5 herein. They further stated that constructions were made on the assigned land. The trial Court decreed the suit through judgment, dated 28.04.2009. Respondents 1 to 3 filed A.S.No.71 of 2009 in the Court of II Additional District Judge, Ongole. The appeal was allowed through judgment, dated 18.01.2010. Hence, this second appeal. Sri J. Seshagiri Rao, learned counsel for the appellants submits that there is no dispute that the land between the road on the one hand and the plots of the petitioners belongs to Government and that the usage of the same by anyone would obstruct the access of the appellants to the road. He further submits that the trial Court followed the judgments of this Court and Supreme Court, which are to the effect that the land abutting the highway cannot be permitted by the Government to be used by private individuals, preventing access to the owners of the neighbouring land. Learned counsel further submits that the pattas that were granted in favour of respondents 1 to 3 were already challenged before the appellate authority. Sri M.Sudhir Kumar, learned counsel for respondents 1 to 3 on the other hand submits that his clients have been granted DKT pattas over a part of the land in question, duly ensuring that the appellants have a free access to the road. He further submits that due to political rivalries, the appellants initiated the litigation just to harass his clients. The trial Court framed the following points for its consideration: 1. Whether the plaintiffs have got right and possession over ‘A’ series property to reach the western donka through A4 marked place directly? 2. whether the plaintiffs are entitled for declaration as prayed for? 3. whether the plaintiffs are entitled for mandatory injunction for removal of basement walls constructed by the defendants in A4 on ‘X’ marked potion? On behalf of the appellants, P.Ws. 1 to 6 were examined and Exs.A.1 to A.10 were filed. On behalf of the respondents, D.Ws. 1 to 3 were examined and Exs.B.1 to B.34 were filed. The trial Court has taken on record Exs.X.1 to X.9, which are mostly in the form of entries in the Revision Register for various years. The suit was decreed and in the appeal preferred by respondents 1 to 3, the lower appellate court framed the following points for its consideration: 1. whether the plaintiffs have acquired right of passage in suit schedule property shown as ‘A4’ marked portion in the plaint plan? 2. whether the plaintiffs are entitled to the permanent injunction and mandatory injunction prayed for? The appeal was allowed and the decree passed by the lower appellate Court was set aside. The appellants do not complain that the respondents have in any way interfered with the possession and enjoyment of the properties owned by them. The dispute is about the right to use a piece of Government land that exists in between the land of the appellants on the one hand and the public road on the other hand. It is true that the road margin or any strip of land owned by the Government abutting the road cannot be permitted to be used by others in such a way as to prevent the access of the owners of the land in the nearby locality. Though the appellants plead that their access to the nearby road is completely blocked, the evidence on record discloses that they do have an access through a portion marked A4. At a time when the strip of Government land in between the road and the land of the appellants was not allotted or assigned to anyone, the appellants may have been using it as a free access to every part of their land. Respondents 1 to 3 have categorically stated that they have been assigned three bits of land from out of the Government poramboke. The pattas were filed as Exs.B.5 to B.7 and all of them were issued on 10.02.1999. As long as the pattas subsist, the appellants cannot have any right to prevent the assignees from enjoying the property. Across the Bar, it is stated that the appellants have preferred appeals before the Revenue Divisional Officer against Exs.B.5 to B.7. Depending on the outcome of the appeals, the appellants can certainly work out their remedies. As the things stand now, they cannot prevent the respondents from using the bits of land that were assigned to them. Hence, the second appeal is partly allowed, setting aside the decree passed by the lower appellate Court and modifying the decree passed by the trial Court to the effect that the appellants herein shall be entitled to use the existing access to the nearby road in question from their plots shown as A1, A2 and A3. They shall also be entitled to work out further remedies depending upon the outcome of the appeals preferred by them before the Revenue Divisional Officer against the pattas marked as Exs.B.5 to B.7. There shall be no order as to costs. __________ 07.09.2011 JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY SECOND APPEAL No.521 of 2011 Date: 07.09.2011 JSU