THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1063 OF 2011 18.10.2011 Between: Gudivada Kondayya (died) And others. …Appellants AND Sri Swamy Omkaranandha Giri of Sri Rama Bhaktha Ashramam, Peddapuram (died) And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1063 OF 2011 JUDGMENT: The first respondent herein (hereafter, the plaintiff) instituted O.S.No.159 of 1990 on the file of the Court of the Principal District Munsif, Peddapuram, originally against four defendants (fourth defendant is the State of Andhra Pradesh). Later fifth defendant was also impleaded. He prayed for mandatory injunction to direct the defendants to remove ‘Y’, ‘Z1’ and ‘Z2’ houses constructed by the defendants on the road margins blocking his right to pathway. After regular trial, the suit was decreed directing the defendants to remove the encroachments. The defendants preferred appeal. During pendency of appeal, defendants 1, 2 and 9 died and their legal representatives were impleaded. The appeal being A.S.No.14 of 1995 on the file of the Court of the Senior Civil Judge, Peddapuram was also dismissed on 28.05.2011. Aggrieved by which, the present second appeal is filed. The plaintiff alleged that he is the Head of Ashram and a residential house shown as ‘X’ and north of which there is a public road ‘ABFCDE’. It is a public road which vested in Peddapuram Municipality – third defendant. The first defendant constructed ‘Y’ marked thatched house and second defendant constructed ‘Z1’ and ‘Z2’ thatched houses obstructing the plaintiff’s right to ingress and egress. He asserted that he has a right to ingress and egress through the municipal road. The suit was opposed by the defendants 1 and 2. They alleged that the plaintiff has a way from the metal road to ‘X’ marked property; inhabitants were granted pattas and therefore, they have constructed houses. Third defendant Municipality filed written statement stating that appropriate authorities granted pattas to the defendants and plaintiff cannot have any complaint. The third defendant also alleged the construction of houses by defendants 1 and 2 does not cause any obstruction. The trial Court framed seven issues. The plaintiff examined himself as P.W.1 and marked Exs.A.1 to A.9. Defendants examined six witnesses and marked Exs.B.1 to B.16. Whether the plaintiff is entitled to mandatory injunction prayed for? This was the fifth issue framed by the trial Court which was considered as main issue. After referring to relevant case law, and the admissions made by D.W.3 and D.W.4, the trial Court concluded that the houses constructed by defendants 1 and 2 are situated immediately on the northern side of the plaintiffs’ property and obstructed his right to ingress and egress and accordingly ordered mandatory injunction. As noticed supra, the appellate Court confirmed the same. The appellants/defendants contends that when the Mandal Revenue Officer, Peddapuram, granted pattas to defendants 1 and 2 for construction of houses and when they constructed houses in accordance with the conditions of patta, a suit for mandatory injunction would not lie. It is also contended that the houses were in existence for more than thirty years even before the plaintiff purchased the property in 1979 and therefore, it is inequitable to grant the relief of mandatory injunction. The submissions made are wholly misconceived. When the pattas Exs.B1 and B.2 are granted by Mandal Revenue Officer, it cannot be presumed that the original defendants 1 and 2 had licence to construct houses in such a manner that they would obstruct the pathway of neighbouring owner. It is a common law principle that the right to enjoy one’s property also is attached with the duty to see that the neighbour also is not inconvenienced and he has also equal right to enjoy the property. If the houses constructed by defendants 1 and 2 are causing obstruction as found by trial Court, mere grant of pattas by the State does not in any manner defeat the right of the plaintiff. The question of fact recorded by the Courts below does not warrant any interference and question of law would not arise in second appeal. The second appeal is misconceived and is accordingly dismissed. No costs. _______________ (V.V.S.RAO, J) 18.10.2011 Pln