THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.250 of 2011 JUDGMENT: The respondent purchased a small portion of constructed area from the appellants through a sale deed dated 01.07.1989 (Ex.A.1), in premises bearing No.4-3-4/1 of Rajahmundry, with the measurements of 12.6 x 32.6 feet. The appellants retained equal extent of constructed area, on the northern side. There existed a common open space of 4 feet width, on the eastern side of both the premises, and a lane of 2 feet on the northern side of the premises of the appellants. According to the recitals in the sale deed, the respondent was entitled to use the ‘L’ shape lane, in the same manner as to the appellants. The respondent ﬁled O.S.No.1433 of 2003 in the Court of I Additional Junior Civil Judge, Rajahmundry, for the relief of mandatory injunction, directing the appellants to remove the toilet constructed in the 4 feet lane, on the eastern side. She pleaded that the toilet is obstructing her passage to the staircase. The further relief of perpetual injunction, after removal of the said structure, was also prayed for. The appellants pleaded that the right of the respondent is in no way hampered and that the suit is ﬁled without any basis. The trial Court dismissed the suit through judgment, dated 17.09.2008, on the ground that it was not maintainable, in the absence of a prayer for declaration of rights. She ﬁled A.S.No.190 of 2008 in the Court of V Additional District Judge (Fast Track Court), at Rajahmundry. The appeal was allowed on 18.01.2011. Hence, this second appeal. Sri M. Lakshmana Sharma, learned counsel for the appellants, submits that the suit was not maintainable, in as much as no relief for declaration of easementary, or other rights was prayed for. He contends that the trial Court assigned cogent reasons for dismissal of the suit and that the lower Appellate Court had reversed the same without any basis. He further submits that the right of passage for the respondent was not at all interfered with and that the decree passed against the appellants is unsustainable in law. Dr.Soﬁa Begum, learned counsel for the respondent, on the other hand, submits that the necessity for seeking the relief of declaration did not arise, since the appellant did not deny the recitals in Ex.A.1. She contends that the toilet was constructed in the 4 feet lane, after the execution of Ex.A.1. Learned counsel submits that the lower Appellate Court has taken correct view of the matter and no substantial question of law arises for consideration. The suit was ﬁled for the two-fold relief of mandatory injunction and perpetual injunction. The trial Court framed two issues covering those two aspects. On behalf of the respondent, PWs.1 to 3 were examined and Exs.A.1 to A.4 were ﬁled. Out of them, Ex.A.1 is the sale deed, through which she purchased the property and Exs.A.2 to 4 are photographs. On behalf of the appellants, DWs.1 and 2 were examined and Exs.B.1 to B.4 were ﬁled. A Commissioner was appointed and the report and sketch submitted by him, were taken on record as Exs.C.1 and C.2. The suit was dismissed, mainly on the ground that the relief of declaration of title was not claimed. Reliance was placed upon certain decided cases. The lower Appellate Court reversed the decree passed by the trial Court. It is almost a rarity that the reliefs of mandatory injunction and perpetual injunction are claimed simultaneously, that too without there being a prayer for declaration of rights. The very fact that the relief in the form of mandatory injunction is claimed discloses that by the time the suit was ﬁled, a particular state of aﬀairs is existed and that the plaintiﬀ in the suit wants that to be changed. Such a relief can be granted only on the strength of declaration of rights of the parties. The relief of mandatory injunction cannot be ﬁled straight away. The trial Court has referred to a judgment rendered by this Court i n Kachana Padmavathi v. Produturu Municipality represented by its Commissioner[1]. Learned counsel for the respondent is not able to point as to how the appellants have overcome the said deﬁciency. The existence of a clause in Ex.A.1 by itself would not relieve the respondent from the obligation to seek the relief of declaration of rights. It is not as if the appellants have admitted the facts that have been pleaded by the respondent. Therefore, the second appeal is liable to be allowed for the short substantial question, viz., “Whether the suit for mandatory injunction can be ﬁled without seeking the relief of declaration of rights”. Be that as it may, there is unanimity among the parties that the open space on the eastern side shown in the plaint plan is meant for common use. The respondent enters that space on the rear side of the premises, owned by the appellants, through a staircase of 2 feet width. Even after the toilet is constructed, abutting the premises of the appellants, there exists open space of 2 feet. The nuisance caused to the respondent, on account of the existence of toilet, can be reduced to a substantial extent by directing the appellants to shift the entrance thereof into their premises and without making any portion of the toilet visible from outside. Hence, the second appeal is allowed, setting aside the decree passed by the lower Appellate Court, however, by directing that the appellants shall close the existing entrance of the toilet on the northern side and provide an entrance from the premises of the appellants in such a way that nothing inside the toilet is visible from outside. It is also directed that the appellants shall not make any construction whatever upon the existing toilet. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J. Dated: 21.11.2011 GJ [1] 2007 (4) ALT 58