HON’BLE SRI JUSTICE GHULAM MOHAMMED SECOND APPEAL No : 59 of 2011 JUDGMENT: This Second Appeal is directed against the judgment and decree dated 8.10.2010 in A.S. No.220 of 2010 on the file of the IV Additional District Judge, Guntur, whereby and whereunder the learned District Judge dismissed the appeal while confirming the judgment passed by the I Additional Senior Civil Judge, Guntur in O.S. No. 964 of 2007, dated 16.11.2009. The appellants are the plaintiffs. They filed the suit in O.S. No. 964 of 2007 for mandatory injunction directing the respondents-defendants to remove the wall erected in the disputed site and also for permanent injunction restraining them from erecting any structures in the disputed site. According to the appellants, they purchased the suit schedule property under three registered sale deeds bearing Nos. 3775/82, 8995/99 and 30/00, but since there were tenants in the property, they demolished the old structure and constructed an R.C.C. building in the year 1999 after obtaining necessary approval from the Municipal authorities. It is stated that the 1st respondent’s vacant site is situated on the Northern side of the building of the 1st appellant, which was purchased by the respondents 2 and 3 in the year 2006 and gifted to the 1st respondent in the year 2007. The wall ABCD shown in the plaint plan extending 10 feet 7 inches from the east to the west with height 1 feet 7 inches on the northern side of the suit property belonging to the appellants. There is also a pillar shown as EFGH in the plaint plan situated on the east to the building on the northern side and it belonged to the appellants. When the respondents tried to encroach into the 1st appellants’ site, the 1st appellant submitted a representation to the Commissioner, Guntur Municipal Corporation, Guntur and to the Superintendent of Police, Guntur on 25.11.2007. In spite of the same, the authorities did not take any action and allowed the respondents-defendants to make construction. Hence, the appellants filed the aforementioned suit in O.S. No. 964 of 2007 before the trial Court. However, as a counter blast to the aforementioned suit, the respondents filed O.S. No. 932 of 2007 before the trial Court. On a perusal of the oral and documentary evidence on record, the trial Court framed the following issues for consideration. 1. Whether the plaintiffs are entitled for declaration as prayed for ? 2. Whether the plaintiffs are entitled for recovery of possession of A schedule property which is alleged to have been part and parcel of plaint ‘B’ schedule property ? 3. Whether the plaintiffs are entitled for mandatory injunction as prayed for ? 4. To what relief ? However, when memo was filed by both the parties to club the suit O.S. No.932 of 2007 and 964 of 2007 and permit them to let in common evidence in O.S. No.964 of 2007, both the suits were clubbed by the trial Court and the issues were recast as under: 1. Whether the plaintiffs are entitled for perpetual injunction as prayed for ? 2. Whether the plaintiffs are entitled for perpetual injunction as prayed for ? 3. Whether the suit for injunction without seeking the relief of declaration is maintainable ? 4. Whether the plaintiffs are entitled for damages as prayed for ? 5. Whether the defendants are entitled for declaration as prayed for ? 6. Whether the defendants are entitled for recovery of A schedule property which is alleged to be part of the plaint B schedule property as prayed for ? 7. To what relief? The trial Court on a perusal of the oral and documentary evidence on record, dismissed both the suits. Challenging the judgment in O.S. No. 964 of 2007, the appellants filed an appeal before the lower appellate Court, being, A.S No. 220 of 2010. The lower appellate Court, by the impugned judgment dismissed the appeal while confirming the order of the trial Court. Hence, the present second appeal. Learned counsel for the appellants contended that even though the appellants examined P.Ws 1 and 2 and also filed Exs. A1 to A13 to establish that they are entitled for injunction, the trial Court as well as the lower appellate Court erred in dismissing the suit filed by them. Hence, he prayed that the impugned order be set aside and the appeal be allowed. Perused the impugned judgment. The appellants filed the suit seeking the relief of mandatory injunction. Admittedly, when the respondents denied the title of the appellants and filed O.S. No. 932 of 2007 seeking the relief of declaration of title and for recovery of possession, it is incumbent upon the appellants to file a suit for declaration of title. Hence, the suit for injunction simplicitor, as filed by the appellants, without seeking the relief of declaration of title and recovery of possession is not maintainable, especially, when the respondents filed the suit in O.S. No.932 of 2007 challenging the title of the appellants. Hence, the trial Court as well as the lower appellate Court have rightly dismissed the suit. I, therefore, do not find any reason to interfere with the concurrent findings recorded by both the Courts below. Further there is no question of law, much less a substantial question of law arises for consideration in this second appeal. The second appeal is devoid of merits and is accordingly dismissed. No costs. ________________________ GHULAM MOHAMMED,J DATE: 4th February, 2011 pnb