*HON’BLE SRI JUSTICE R.KANTHA RAO + S.A.No.753 of 2007 % Date: 30.08.2011 Between: # Talari Nageshwar Rao and another …Appellants And $ Nakkala Pushpavathi and another …Respondents ! Counsel for appellants: Smt. K.Malleswari ^ Counsel for respondents: Sri Ch.Dhananjai < GIST: >HEAD NOTE: ? Cases referred: THE HON’BLE MR JUSTICE R. KANTHA RAO Second Appeal No. 753 of 2007 Date:30.08.2011 Between: Talari Nageswara Rao and another …Appellants And Nakkala Pushwavathi and another …Respondents THE HON’BLE MR JUSTICE R. KANTHA RAO Second Appeal No. 753 of 2007 JUDGMENT: This second appeal arises out of the common judgment dated 23.02.2007 passed by the Senior Civil Judge, Chirala in A.S.Nos.1 and 2 of 2006 confirming the decree and judgment dated 17.12.2005 passed by the Principal Junior Civil Judge, Chirala in O.S.No.229 of 2002. 2. Heard the learned counsel appearing for the appellants and the respondents. 3. For the sake of convenience, the parties will be referred to as “the plaintiffs and the defendants”. 4. This second appeal is preferred by the defendants 1 and 2. The plaintiffs filed the suit for mandatory injunction against the defendants seeking removal of some constructions made by the defendants in items 1 and 2 of the plaint schedule property. The trial Court decreed the suit. The appeal preferred there-against was dismissed by the learned first appellate Court confirming the decree and judgment passed by the trial Court. Feeling aggrieved, the defendants 1 and 2 preferred the present second appeal. 5. The second appeal is admitted upon considering the following substantial questions of law involved in the appeal: Whether: a) The lower appellate Court failed to follow the legal principles to the effect that mere suit for mandatory injunction is not maintainable when the title of the plaintiffs is denied. b) The learned lower appellate Court failed to follow the legal principle that the appellants have made the constructions around than 20 years back and a mandatory injunction directing demolition of the structures is not allowed under law. c) The learned courts below failed to interpret the documents Exs.B-1 to B-23. d) The learned Courts below wrongly held that a suit for mandatory injunction can be entertained by private party through the government land after a long lapse of the construction of houses in the government land. e) The Courts below wrongly held that the burden is on the appellants/defendants ignoring the Section 10 of the Evidence Act. 6. The plaintiffs claimed title to their respective houses having constructed in 20 cents of land purchased by late Nakkala Subba Rao who is their ancestor in D.No.193/1 of Kothapet village under the registered sale deed bearing No.341/969. The houses constructed by the plaintiffs are shown as C1, C2, C3 and C4 in the plaint plan. The plaintiffs alleged in the plaint that the defendants raised constructions in the plaint schedule plan. The said constructions according to the plaintiffs are in the road margin and therefore, they are liable to be removed. The defendants 1 and 2 contended that in or about 1985, they occupied the government poramboke land, they have been in possession and enjoyment of the said land since then, some time thereafter they constructed the houses therein, the Mandal Revenue Officer, Vetapalem recognized their possession and issued Section 7 notice in the year 1990 and the issuance of section 7 notice shows that they have been in possession of the said houses and that they have also been paying house tax to the Gram Panchayat, Kothapet. Exs.B-1 to B-23 documents marked on behalf of the defendants clearly indicate their long possession over respective houses. 7. It was also brought on record in the evidence that the plaintiffs had some other way to reach the Vedarevu main road and thus, the defendants’ contention is that the plaintiffs cannot seek the relief of mandatory injunction against them which was granted by the learned trial Court and confirmed by the first appellate Court. The learned trial Court, however, relied on a decision reported in S. SOMESWARA RAO AND OTHERS v. S. TIRUPATAMMA AND OTHERS[1] wherein this Court held as follows: “No person can be allowed to occupy a portion of a public road, a highway, or even a public pathway and argue that even after his encroachment there is sufficient space left for public to pass by. He cannot be the judge of the requirements of the public, nor can he decide for himself what extent must be left for public use and what extent must be occupied by him.” 8. Relying on the said judgment of this Court, both the Courts below held that the defendants cannot restrict their right of access of the plaintiffs to the main road in a particular direction and thus, accepted the version of the plaintiffs and granted relief of mandatory injunction. The substantial question of law which is involved in the instant case arises for consideration is that admittedly the houses of the plaintiffs are situated in road margin which they are not supposed to occupy and construct the houses, can they seek the relief of mandatory injunction against the defendants 1 and 2, the appellants herein for removal of their houses which are also said to be situate in road margin. The learned first appellate Court expressed the view that if the houses of the plaintiffs are situate in road margin, any villager can approach the Gram Panchayat or the Court for removal of the said houses but the defendants cannot resist the suit filed by the plaintiffs since their houses are constructed encroaching the road margin. 9. The said finding recorded by the learned first appellate Court, in my considered view is totally erroneous and contrary to law. The plaintiffs who are guilty of constructing houses in road margin cannot maintain the suit against the defendants for the relief of mandatory injunction on the ground that the defendants’ houses were built encroaching upon the road margin. Moreover, except Ex.A-1 registered sale deed under which the ancestor of the plaintiffs by name Nakkala Subba Rao purchased the site of an extent of 20 cents, the plaintiffs have not filed any documents. Whereas, the defendants filed Exs.B-1 to B-23 and the said documents reveal long possession of the defendants and also the fact that they are paying house tax to the Gram Panchayat. The plaintiffs have not adduced any convincing evidence to show that the defendants’ houses are constructed by encroaching upon the road margin of the village Kothapet. There being no convincing evidence showing that the houses are built by the defendants encroaching upon the road margin and either the government or the Gram Panchayat not being party to the suit, the approach adopted by both the Courts below in grating the relief of mandatory injunction in favour of the plaintiffs and against the defendants, in my opinion is not in accordance with law. The contention of the defendants in this case is that long back they have encroached the government poramboke land and constructed houses therein and that their houses are not constructed on the road margin. When the defendants raised such contention, it obligates the plaintiffs to add the government as well as the Gram Panchayat as parties to the suit. But, the plaintiffs failed to take any such steps. There was no documentary evidence before the Courts below showing that the defendants built their houses in the road margin or encroached part of the road margin. As I have already said the plaintiffs who are guilty of constructing the houses in the road margin, cannot exercise their right to seek the relief of mandatory injunction against the defendants on the ground that they also constructed the houses in the road margin. The findings recorded by both the Courts below are not only contrary to law affecting the rights of the defendants and also not based on the evidence forthcoming in the present case. Therefore, they are liable to be set aside in the second appeal. 10. For the foregoing reasons, the common judgment dated 23.02.2007 passed by the Senior Civil Judge, Chirala in A.S.Nos.1 and 2 of 2006 confirming the decree and judgment dated 17.12.2005 passed by the Principal Junior Civil Judge, Chirala in O.S.No.229 of 2002 granting mandatory injunction against the defendants directing the demolition of their houses is set aside. The suit filed by the plaintiffs is dismissed. The second appeal succeeds and the same is allowed. There shall be no order as to costs. __________________ Date:30.08.2011 R. KANTHA RAO,J Note: L.R.copy to be marked. B/O ccm HON’BLE MR JUSTICE R. KANTHA RAO Second Appeal No. 753 of 2007 DATE:30.08.2011 [1] 1988 (2) Law Summary 223