THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.170 of 2004 JUDGMENT: The plaintiff in O.S.No.745 of 1995 on the file of the learned Principal Junior Civil Judge, Kurnool is the appellant. He filed the suit for the relief of perpetual injunction and mandatory injunction against the respondent vis-à-vis the suit schedule property. He pleaded that the respondent opened a door, marked as ‘MNOP’ in the rough sketch plan, into his property, an open site, without there being any right to do so. It was asserted that the open place, into which the door was opened by the respondent, is not a public lane at all. The respondent filed a written statement opposing the suit. He pleaded that the door was opened to a public lane and that the marked place does not exclusively belong to the appellant. The trial Court decreed the suit through judgment, dated 07.04.1999. Feeling aggrieved by it, the respondent filed A.S.No.81 of 1999 in the Court of V Additional District Judge, (Fast Track Court), Kurnool. The appeal was allowed on 21.01.2004 and the decree passed by the trial Court was set aside. Hence, this second appeal. Heard Sri M.Jeevan Reddy, learned counsel for the appellant and Sri M.S.R.Subrahmanyam, learned counsel for the respondent. The appellant claimed the relief of perpetual and mandatory injunctions against the respondent. The trial Court framed two issues for its consideration viz., whether the appellant is entitled for the relief of mandatory injunction as prayed for and whether he is entitled for permanent injunction as prayed for. On behalf of the appellant, P.Ws.1 to 3 were examined and Ex.A.1, a certified copy of the sale deed, dated 27.10.1939 was filed. The respondent deposed as D.W.1. He did not file any documentary evidence. The suit was decreed and in the appeal preferred by the respondent, the lower appellate Court framed the following points for its consideration: 1. whether the plaintiff is entitled for permanent injunction as prayed for? 2. whether the plaintiff is entitled for mandatory injunction as claimed in his pleadings? 3. whether Ex.A.1 is not binding on the defendant? 4. whether the judgment and decree of the trial Court is liable to be set aside? During the pendency of the appeal, an Advocate- Commissioner was appointed and the report submitted by him was taken on record. The appeal was ultimately allowed and the decree passed by the trial Court was set aside. Irrespective of the merits of the matter, one important legal aspect, which needs to be examined, is as to whether a suit for the relief of mandatory injunction can be filed, without seeking the declaration as to the rights of the plaintiff. Whatever be the permissibility of filing of a suit for the relief of injunction or other reliefs, or eviction, without seeking the relief of declaration of title, in a suit for mandatory injunction, it becomes necessary that the relief of declaration is sought. The relief of mandatory injunction pre- supposes the existence of a particular state of affairs brought about by the defendant and unless that particular state of affairs is held to be in violation of the rights of the plaintiff, the defendant cannot be required to undo the same. That would be possible, if only the rights of the plaintiff are declared and for that purpose, it becomes essential to seek the relief of declaration of rights. The appellant did not feel the necessity of seeking the relief of declaration of his rights. The record discloses that the appellant proceeded on the assumption that Ex.A.1 filed by him is sufficient to establish his rights to seek the relief of mandatory injunction also. The record however discloses that there is a serious dispute as to the very character of the marked portion into which the door was opened. The parties are not in agreement as to the character of the said property. The petitioner made an effort before this Court by filing an application under Rule 27 of Order 41 C.P.C. with a request to receive a sale deed said to be in respect of the disputed property as additional evidence. He too felt the necessity of the declaration from the Court as to the character of the said property. That would be possible, if only full- fledged trial is conducted. Even now, the appellant can file a comprehensive suit and seek further remedies in the form of perpetual or mandatory injunctions. Hence, the second appeal is dismissed. However, it is left open to the appellant to file a fresh suit for the relief of declaration of title and other ancillary reliefs. Since the appellant has been pursuing the remedies all through, in case a suit is filed, as indicated above, within four weeks from today, it shall be entertained without raising any objection as to limitation. There shall be no order as to costs. __________ 08.12.2011 JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.170 of 2004 Date: 08.12.2011 JSU