THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.645 OF 2011 Dated:08.09.2011 Between: Kadali Maheswara Rao .. Appellant And Surat Vanaja and another .. Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.645 OF 2011 JUDGMENT: The concurrent judgment of the first appellate Court in A.S.No.184 of 2010 dated 08.03.2011 on the file of the Court of the III Additional Senior Civil Judge, Kakinada, confirming that of the judgment in O.S.No.443 of 2001 dated 07.09.2009 on the file of the Court of the I Additional Junior Civil Judge, Kakinada, is assailed in this Second Appeal. The plaintiff is the appellant. He filed O.S.No.443 of 2001 for mandatory injunction directing the first defendant to remove encroachments made by her into his property. After regular trial, the said suit was dismissed, which was confirmed by the first appellate Court. The case of the plaintiff is that he is the owner of Plot No.38 admeasuring 307 sq. yards having purchased the same under a registered sale deed dated 19.07.1985; he constructed tiled house leaving 7 to 8 feet width of site and also constructed a compound wall; the first defendant claiming to be the purchaser of Plot No.37 on the northern side of the plaint schedule property, constructed ground floor in her entire site without leaving 1.5 metres width, she also constructed first and second floors by making aerial encroachment of more than 1.5 feet to two feet width on the plaint schedule property and she is trying to construct bathroom and pipes towards the house of the plaintiff by making further aerial trespass into the plaintiff’s property causing legal injury to him. The first defendant opposed the suit. The second defendant, namely, the Municipal Corporation of Kakinada, filed written statement inter alia stating that the first defendant constructed the first floor even though permission was refused and, therefore, notices were issued under Section 228 of the Andhra Pradesh Municipalities Act, 1965 (the Act), but the second defendant denied the allegation that the first defendant constructed the second floor. During trial, the plaintiff examined two witnesses and marked Exs.A1 to A7. The defendants examined two witnesses and marked Exs.B1 to B4. On considering the evidence, the trial Court dismissed the suit observing that the exceptional remedy of mandatory injunction cannot be granted in the absence of any proof that the plaintiff suffered injury or damage. On appeal, the plaintiff’s case was also not accepted by the appellate Court and the appeal was dismissed. The learned counsel for the appellant/plaintiff submits that the issuance of notices under Section 228 of the Act as admitted by the second defendant itself is sufficient to show that the first defendant made illegal constructions and encroached into the plaintiff’s property and, therefore, the findings recorded by the Courts below were erroneous. The said submission cannot be accepted. The trial Court found that the plaintiff did not prove about the alleged encroachments made by the first defendant but also did not plead or prove that any legal injury is caused to him. Therefore, the question of mandatory injunction would not arise. An injunction whether perpetual or mandatory is equitable remedy granted by the civil Court only when the person seeking such injunction pleads and proves the legal injury caused by reason of an activity undertaken by the defendants. This finding of the trial Court is unimpeachable. The learned first appellate Judge reconsidered the evidence and recorded a finding of fact that the plaintiff failed to prove his case on probabilities that there is imminent danger in enjoyment of his house. He also failed to produce any evidence to show that the first defendant constructed the second floor. The findings recorded by the Courts below are findings of fact and, hence, no interference is called for. The Second Appeal is accordingly dismissed. There shall be no order as to costs. ________________ (V.V.S. RAO, J) 08.09.2011 KH