HON’BLE SRI JUSTICE A. GOPAL REDDY S.A. No.6 OF 2010 Dated:12-03-2010 Between: Routhu Venkateswara Rao …Appellant AND Chavvakula Uma Maheswara Rao & Others. …Respondents This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY S.A. No.6 OF 2010 JUDGMENT: Unsuccessful second defendant before the lower appellate Court filed this Second Appeal against the judgment and decree of V Additional District Judge (Fast Track Court), East Godavari at Rajahmundry made in A.S.No.20 of 2002, dated 20.9.2009, whereby the appeal filed by the defendants was dismissed confirming the judgment and decree of I Additional Junior Civil Judge, Rajahmundry made in O.S.No.576 of 1985, dated 21.12.2001 decreeing the suit of the plaintiffs for mandatory injunction and directing the defendants to remove the heap of soil in the suit lane and to remove the fence and newly constructed wall. For the sake of convenience, hereinafter, the parties will be referred to as per their before the trial Court. The case of the plaintiffs was that plaintiffs 1 to 5 are the sons and plaintiff No.6 is the wife of late Chavvakula Padmanabham and that the house property bearing door No.34-2-5 (old D.No.17/224) in Zamindar Chintalvari Road in Mangalavarapupeta, Rajahmundry is their ancestral property, which is described as ‘P’ in the plaint plan. The property to the north of the said house belonged to Yerakala family, and that various branches of the Yerakala family for the convenient enjoyment, created a joint lane to the south of their houses i.e., to the north of the plaintiffs house, in T.S.No.198 with a length of 27 yards and width of 3 feet for passage purpose to the western road and also constructed a drainage in the joint lane to drain off the rain and waste water into the open drain alongside the Zamindar Chinthalavari Street, and that those land and drain have been in use from 19th century. While so, in the year 1909 and 1912 one Katta Subbamma, wife of Paddaraju purchased the houses and sites from Yerakala family people along with the joint lane. She died leaving behind her three sons Gurayya, Narayana Murthy and Swamy as the sole surviving heirs. Since the house of the plaintiffs had no entrance to the backyard of their house to reach western road and also it has no drainage facility, late Chavvakula Padmanabham entered into agreement with the sons of Katta Subbamma whereunder Padmanabham was allowed to open a doorway towards the western end of his northern boundary wall opening into the joint lane “PQRS” at point ‘Q’ as per the plaint plan and also to let the used water and rain water into the drain shown as DERS in the joint lane which joins the open drainage alongside the Zamindar Chinthalavari Street. To that effect, a registered agreement, dated 5.8.1959 was executed by the successors of Katta Subbamma in favour of Padmanabham by taking the consideration of Rs.400/-. Ever since, late Padmanabham and after his death, the plaintiffs are enjoying the said rights of passage and drain. While so, the defendants who constructed theatres in the adjourning survey numbers, also began to purchase sites in T.S.No.198 and in the process, they purchased the property and obtained the sale deeds from the sons of late Katta Subbamma i.e., in respect of 2/3 and 1/3 undivided interest, in which the existence of the joint lane was mentioned. The property purchased by the defendants is to the north of the plaintiffs’ house property. The defendants also purchased the site with old thatched from Mangalavarapupeta Cooperative Urban Bank. Then they started construction of theatre ‘Rambha’ and heaped the earth dug in the joint lane obstructing the passage and also flow of the drain water. Since the first plaintiff is the close friend of the second defendant, he believed the representations of the 2nd defendant that after the construction of the theatre, the earth would be removed, but they failed to do so and on the other hand lodged a caveat. Therefore, the plaintiffs got issued a legal notice on 6.7.1985 to all the defendants demanding to remove the earth piled in the joint lane to facilitate the passage of the plaintiffs from the doorway shown as ‘O’ in the plaint plan from the northern wall of the house, and since it has not evoked any response, the plaintiffs themselves attempted to remove the heap of the earth from the lane. The defendants obstructed the plaintiffs and constructed a wall between ‘Q’ and ‘R’. Hence, the suit. Contesting the suit, the defendants filed a written statement contending that they purchased 2/3 share in the house bearing door No.17/12 from the sons, daughters and wife of late Katta Gurraiah and the sons and daughters of late Katta Narayana Murthy under the registered sale deed, dated 24.1.1980. They also purchased remaining 1/3 share of the said house from the children and grand children of late Katta Veerabhadra Rao under a registered sale deed, dated 26.2.1981. It was their plea that under the registered agreement pleaded by the plaintiffs it is recited that the joint lane is owned by Yerukala families, and therefore, few sharers of Yerukala family cannot create passage and drain rights in favour of the plaintiffs’ ancestor. Basing on the above pleadings, the trial Court framed necessary issues for trial. To prove the respective claims, the plaintiffs examined P.Ws.1 to 7 on their behalf and marked Exs.A.1 to A.19. On behalf of the defendants, D.Ws.1 to 4 were examined and Exs.B.1 and B.2 were marked. Through the advocate Commissioner, Exs.C.1 to C.3 were marked. The trial Court after appreciation of oral and documentary evidence available on record, decreed the suit of the plaintiffs granting the reliefs as prayed for. Aggrieved, defendants preferred the first appeal. The lower appellate Court framed as many as five points for consideration. On point No.1 it was held that the plaintiffs have no ownership rights in ‘PQRS’ lane except the right of passage and letting the drain water and accordingly, confirmed the findings of the trial Court that ownership in the lane were not transferred to late Ch.Padmanabham under Ex.A.1 except creating the right of passage and right of letting drain water from his house into the drain in the lane. On point No.2, the lower appellate Court rejected the arguments of the defendants that even the Ex.A.1 material document relied on by the plaintiffs, the northern boundary for the alleged passage was shown as the site of Yukala Veera Venkanna, and that when the disputed lane was set up by several Yukala Families for their enjoyment, the execution of Ex.A.1 by the descendents of late Katta Subbamma who said to have purchased some properties from some of Yukala families, cannot create any rights in favour of the plaintiffs’ ancestor Ch.Padmanabham for using the ‘PQRS’ lane as passage and also to discharge the drain water thereby burdening the “PQRS lane with additional enjoyment. It was observed that Exs.A.14 and A.15-sale deeds, under which the defendants purchased the properties from the descendents of Katta Subbamma, there is a clear recital with regard to the existence of PQRS lane. Having purchased the properties under Exs.A.14 to A.16 and also the other properties in that area for the construction of theatres, the defendants became the owners of all the properties for enjoyment of which the PQRS lane was set apart and as such there is no possibility for impleading any other persons, namely, Yerukala families as parties to the suit having rights in the lane and accordingly answered the point against the defendants. On point No.3 viz., ‘whether PQRS lane as described by the plaintiffs has been in existence?’ after considering the title deeds of the defendants vis-à-vis Ex.A.1 and Ex.C.3, the report of the Commissioner, the lower appellate Court accepted the existence of the PQRS lane, the enjoyment of the right of passage by the plaintiffs from their northern doorway ‘O’ to the western municipal road and also to discharge the drain water into the drain in PQRS through the bend pipe as in Ex.C.3 report, and accordingly held that the acts of the defendants in dumping the earth and debris in the PQRS lane would make impossible for the plaintiffs to exercise their rights they got through Ex.A.1. On point No.4, though the defendants not raised the plea in the written statement that the suit is bad for non-seeking the relief of the declaration of the rights of the plaintiffs to enjoy the right of passage in the PQRS lane either in the written statement or in the arguments, the lower appellate Court, considering the oral arguments, held that non-seeking the relief of declaration of their rights by the plaintiffs over PQRS lane is not fatal and that when the plaintiffs’ claim of their rights on the strength of Ex.A.1, they cannot be expected to seek the declaration of their title by paying the court fee on ¾ market value and accordingly, answered all the points against the defendants and dismissed the appeal. Questioning the same, the present second appeal is filed by the defendant No.2. Sri V.L.N.G.K. Murthy, learned counsel appearing for the appellant-defendant No.2, by placing reliance on Bachhaj Nahar v. Nilima Mandal & Others(AIR 2009 SC 1103) strenuously contended that when the plaintiffs failed to establish their easementary right over the suit schedule property and in the absence of any such plea, the finding recorded by the lower appellate Court in that regard while dismissing the appeal is erroneous. Mere entering into an agreement under Ex.A.1, the plaintiffs would not acquire any right to use the disputed passage particularly, when all the persons interested over the said property are not parties to the said agreement. Admittedly, the ancestor of the plaintiffs late Ch.Padmanabham purchasing the property from Katta Subbamma is not in dispute. Further, late Padmanabham obtained a registered agreement, dated 5.8.1959 from the heirs of Katta Subbamma for a consideration whereby he was allowed to open a doorway towards western end of his northern boundary wall opening into the joint lane owned by the Yerukala families including Katta Subbamma and ever since the said date, Padmanabham and after his death, the plaintiffs have been enjoying the right of passage till the date of institution of the suit. Under Exs.A.14 and 15, sale deeds, the defendants purchased the properties from the descendents of Katta Subbamma, but the said sale deeds do not bear the recitals about the existence of the said lane as southern boundary. Admittedly, to the west of the properties covered by Exs.A.14 and A.15, the defendants purchased the site from the Urban Bank. In those documents also, a clear recital is made with regard to the existence of the PQRS lane as such having purchased the properties under Exs.A.14 to A.16 and also the other properties in that area for the construction of the theatres, the defendants became the owners of all the properties for enjoyment of which, the PQRS lane is set apart. The suggestions made by the defendants’ counsel to the plaintiffs’ witnesses also probablises the existence of PQRS lane, which is being enjoyed by the plaintiffs. P.W.5, the brother of the father-in-law of late Padmanabham deposed as to the existence of PQRS lane and the enjoyment of rights therein by Padmanabham and the plaintiffs in pursuance of Ex.A.1. Thus, when the plaintiffs established the opening of the doorway into the PQRS lane and as it was permitted under Ex.A.1 registered agreement, the plaintiffs’ rights over the lane has been recognized by the descendents of Katta Subbamma from whom the defendants purchased the property and therefore, they cannot deny the right of the plaintiffs over the disputed passage nor can they obstruct them from using the passage. The judgment quoted by the learned counsel for the appellant-second defendant is misplaced to the facts of the case on hand as the suit of the plaintiffs itself is filed for mandatory injunction for removal of newly constructed wall and the heap of soil that was stored in the lane which is being used by the plaintiffs more than the statutory period. The concurrent findings of fact arrived at by the courts below is on appreciation of the evidence in proper perspective and no question of law much less any substantial question of law arises for consideration to admit the second appeal. The Second Appeal fails and the same is accordingly dismissed. No order as to costs. _______________ A. GOPAL REDDY, J. MARCH 12, 2010 Tsr.