HONOURABLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.729 OF 1999 Dated 14-2-2011 Between: Cherukumudi Ananda Rao. …Appellant. And: Vamintiparthi Srinivasarao and others. …Respondents. HONOURABLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.729 OF 1999 JUDGMENT: This Second appeal is filed against the decree and judgment passed by the leaned 1st Additional District Judge, Nellore in A.S.No.138 of 1991 confirming the substantial portion of the decree and judgment and modifying the remaining portion holding that the respondents have no right of easement in respect of the well. Plaintiff is the appellant. I have heard Sri M.S.R.Subrahmanyam, learned counsel appearing for the appellant and Sri P.Madhusudhan Kumar, learned counsel appearing for the 1st respondent. For the sake of convenience, the parties will be referred to as plaintiff and defendants. The following substantial questions of law have been raised in the grounds of appeal. a) Whether, on the facts and in the circumstances of the case, the lower appellate Court is right in granting a relief which is destructive of or, at any rate, renders the servient tenement useless for the plaintiff. b) Whether, on the facts and in the circumstances of the case, the lower appellate Court erred in not granting mandatory injunction resulting in rendering the servient tenement useless for the plaintiff especially when the said door way was opened a month or two before the inspection by the Commissioner. c) Whether, the lower appellate Court is right in granting a right of easement which is not clear, defined and is vague in the circumstances of the case and is capable of being misused and casts substantial burden on the servient tenement especially when there is no pleading to that effect by the 3rd defendant. The deceased first plaintiff filed the suit in respect of site seeking the reliefs of declaration of title, permanent injunction and a mandatory injunction to remove a doorway of door No.118 belonging to the 3rd defendant. There is a passage mentioned as ‘D2, D3, M and N’ which passes through the site of the plaintiff to that of the defendants. A door way has been in existence at door No.117 to have access to the ‘D2, D.3, M and N’ passage. The learned trial Court after considering the entire evidence on record granted the relief of declaration of title to the site of the plaintiff and permanent injunction restraining the defendants from interfering with the possession and enjoyment of the said site by the defendants but declined to grant the relief of mandatory injunction sought for by the plaintiff i.e., seeking issuance of direction to close the door way to door No.118 by the 1st respondent. The 1st appellate Court concurred with the findings of fact and law recorded by the trial Court. It only deferred with the findings of the trial Court that the 1st respondent (defendant No.3) has easementary right over the well and modified the decree and judgment passed by the learned trial Court. The learned first appellate Court specifically held that the 3rd defendant has got right of passage to reach the Southern street, but observed that in the written statement filed by the 2nd defendant and adopted by the 3rd defendant, no right of passage was claimed to the passage as shown in Ex.A.14 plan. To this extent, the first appellate Court says that the trial Court was not correct in making decision on the right of 3rd defendant. Therefore, the learned first appellate Court set aside the findings of the trial Court to that extent and held that right of passage of the 3rd defendant is only to reach the street which street is known as the street or gully leading to Sri Anjaneyaswamy temple. Both the courts have concurrently held that the defendants have right of easement over the passage and in fact the plaintiff also not seriously disputed the said question. The grievance of the petitioner is that there was already a door way at door No.117 for the purpose of entering into the passage and the 3rd defendant who purchased the property from the 2nd respondent defendant cannot open another door way at door No.118 and therefore, the mandatory injunction has to be issued directing the 3rd defendant to close the said door way. Both the courts below having noticed by referring to the evidence on record and also the report of the advocate –commissioner noticed that the said door way was opened recently i.e., a few months prior to the filing of the suit and it was not in existence for more than 25 years since times immemorial as contended by the defendants. However, both the courts recorded positive finding that since the defendant No.3 who was earlier tenant under D.2 purchased the property subsequently, is entitled to open a doorway to have access to the passage. Both the courts have mainly proceeded on the assumption that since the defendant No.3 has a right of easement over the passage, his right cannot be restricted by issuing the mandatory injunction directing him to close the door way. Learned first appellate Court referring to Section 30 of the Easement Act and also perusing the contents of Exs.B.3 sale deed held that the 3rd defendant is entitled to open such doorway and it cannot be ordered to be closed merely because his plea that the said doorway was in existence since times immemorial found to be factually incorrect. The first appellate Court also expressed the view that merely because the 3rd defendant did not exercise any right by opening a doorway earlier to his purchase since he was only a tenant and that cannot be a ground for denying him after he became owner of the property, to open the door way for his convenience. I do not accede the contention urged by learned counsel appearing for the plaintiff that by not granting mandatory injunction that the first appellate Court erred in its revision and the said decision results in additional burden to the plaintiff and thereby restricts the use of the plaintiff to the passage. There is no force in the contention put forth by the learned counsel for the plaintiff that in view of the opening of the said door way at door way No.118, the rights of the plaintiff are affected. Finding of fact and law recorded by the Courts below are in accordance with the pleadings and evidence on record and also in conformity with the law on the subject. The findings therefore need no interference in this Second Appeal. For the foregoing reasons, the Second Appeal is dismissed confirming the decree and judgment passed by the 1st appellate Court. There shall be no order as to costs. _______________________ Justice R.KANTHA RAO Dated 14-2-2011. Dvs HONOURABLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.729 OF 1999 Dated 14-2-2011