THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1090 of 2009 (Dated 22-12-2009) Between: Peyyila Parvathi R/o Srikakulam District. ..Appellant And Muddada Puvvulamma (died) per LRs …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1090 of 2009 JUDGMENT: This Second Appeal is directed against the judgment dated 15.10.2009 passed in A.S.No.14 of 2006 on the file of the Family Court-cum-Additional District Court, at Srikakulam, whereby and whereunder, the learned Additional District Judge dismissed the appeal filed against the judgment dated 21.11.2005 passed in O.S.No.150 of 1999 on the file of the II Additional Junior Civil Judge, Srikakulam. 2. This is second round of litigation between the parties. The 1st respondent herein was the plaintiff in O.S.No.431 of 1989. The said suit was filed by her seeking injunction against the appellant-defendant in respect of the rasta admeasuring 10X96 feet. The said suit ended in dismissal on 30.8.1993. The plaintiff carried the matter in appeal, being A.S.No.27 of 1994. The appeal came to be allowed granting injunction as sought for by the plaintiff. The defendant constructed bathroom encroaching on the 10 feet width rasta. Therefore, she filed O.S.No.150 of 1999 seeking for mandatory injunction for removal of the bathroom and lavatory constructed by the defendant. Pending the suit, the sole plaintiff died and her legal representatives came on record as plaintiffs 2 to 6 as per orders in I.A.No.466 of 2001 dated 19.10.2001. The said suit ended in decree. The defendant filed A.S.No.14 of 2006 on the file of the Family Court-cum-Additional District Court, at Srikakulam. The learned Additional District Judge, on reappraisal of the evidence brought on record proceeded to dismiss the appeal, by judgment dated 15.10.2009. Hence, this Second Appeal. 3. When the Second Appeal came up for admission, the respondent entered appearance through a counsel. 4. Heard learned counsel appearing for the parties. 5. Learned counsel appearing for the appellant-defendant submits that the bath room constructed by the appellant-defendant is within the area covered under Ex.B-1 and therefore, the trial court as well as the lower appellate Court committed grave error in granting mandatory injunction in favour of the respondents-plaintiffs. 6. Learned counsel appearing for the respondents-plaintiffs submits that the width of the rasta is 10 feet and length is 96 feet and the existence of the rasta has reached finality in the earlier litigation and therefore, the appellant- defendant cannot be permitted to contend that the bath room and lavatory constructed by him are within the area purchased by him under Ex.B-1 sale deed. 7. The deceased-1st plaintiff filed the suit for mandatory injunction on the ground that the appellant-defendant constructed bathroom and lavatory in the rasta. For better appreciation, I may refer the plaint schedule, which reads as hereunder:- “Plaint schedule pathway measuring North to South 96 feet and 10 feet East to West situated in Balaga Ward, Chinna Bondilipuram, Srikakulam in T.S.No.617 is bounded by East :- House of Defendant South: Muncipal Road West : Rakoti Reddamma, Chintalapalli Appalasuri houses North: Plaintiff’s houses” 8. It is evident from the plaint schedule that the suit rasta admeasures 10 feet width and 96 feet length. It is the contention of the appellant-defendant that under the guise of the decree, the respondents are contemplating to remove bathroom and lavatory situated beyond 10 feet width. Such a contention cannot be permitted to be advanced since the plaint schedule is clear with regard to the measurement of pathway. The mandatory injunction operates only in respect of pathway admeasuring 10 feet X 96 feet. 9. Learned counsel appearing for the respondent does not dispute the fact of the measurement of the pathway. Therefore, the appellant-defendant has either to remove the bathroom and lavatory, which are coming within the pathway or the respondent-plaintiff can get them removed through process of Court. In this regard, I may refer the finding recorded by the lower appellate Court in para 18 of the judgment impugned in this appeal. “The argument advanced by the learned counsel for the appellant-defendant that the defendant left 5 feet site as per the building regulations, is also not tenable because there is absolutely no evidence placed before the Court by the defendant in proof of that contention. On the other hand, the Commissioner’s plan and the report are disproving the said contention. The further argument of the learned counsel that the respondents filed the E.P for demolition of the bathroom of the appellant even though it is well within her site is also not at all tenable because of the fact on record that the said bathroom is very much within the plaint schedule common passage/pathway. The further argument of the learned counsel for the appellant that in the plan the Advocate-Commissioner said that the bathroom extended 4 inches is also not tenable because the middle width of the site/slabbed building of the defendant is shown as 15 feet 9 inches whereas it is 16 feet as pr the sale deed of the defendant herself the registration extract of which was filed and marked by her before the trial Court as Ex.B.1 and thus there was a shortage of hardly 3 inches in that middle width of her site. If that 3 inches width is excluded from the width of the bathroom on the Northern side as well as on the southern side all the remaining width of that bathroom at 3 feet 6 inches on the North and 3 feet 1 inch on the South with the common length of 10 feet is very much situate in the plaint schedule pathway which is nothing but the Western boundary of the site purchased by the defendant from Muddada Ramulu and his sons.”. 10. In view of the findings recorded by the lower appellate Court, I do not see any substance in the contention of the learned counsel appearing for the appellant that the respondents are trying to remove a portion of the bathroom and the lavatory, which are built outside 10 feet width. There is no substantial question of law involved in this appeal warranting admission. 11. Accordingly, the Second Appeal is dismissed at the admission stage. No order as to costs. _____________________ B.SESHASAYANA REDDY, J Dt.22-12-2009 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Second Appeal No.1090 of 2009 DATED : 22-12-2009