THE HONOURABLE SRI JUSTICE A.GOPAL REDDY SA No.512/2009 Dt.6-11-2009 Gandumenu Sivaiah ..Appellant V. 1. Nallamilli Adi Reddy and others ..Respondents THE HONOURABLE SRI JUSTICE A.GOPAL REDDY SA No.512/2009 JUDGMENT This Second Appeal by the first defendant is directed against the judgment of the Senior Civil Judge, Ramachandrapuram dated 11-11-2009 in A.S.No.68/2004 whereby the appeal filed by the first defendant was dismissed confirming the judgment and decree of the Junior Civil Judge, Alamuru dated 20-10-2003 passed in O.S.No.92/97 decreeing the suit of the plaintiff filed for permanent injunction directing the defendants, their men, agents, representatives not to interfere with the A B C D marked portion of the plaint in any manner whatsoever. For the sake of convenience, the parties will be referred to as arrayed in the suit. The plaintiff filed the present suit seeking permanent injunction restraining the defendants and their men from interfering with “A B C D” marked portion in the plaint plan. Subsequently, it was converted into a suit for declaration of right of way in item No.2 of plaint schedule property corresponding to “A B C D” of plaint plan and for consequential mandatory injunction directing the defendants to remove the constructions made in that “A B C D” marked property as per orders passed in IA No.1019/98 dt. 6-10-1999. In the plaint, it is alleged by the plaintiff that he purchased the plaint schedule property under a registered sale deed dt. 16-8-1984 and has been enjoying the same with absolute rights. The “A B C D” marked road margin with a width of 12 feet and length of 17 feet abutting the plaint schedule property on its western side belongs to R & B Department. The plaintiff started brick kiln in his property in the year 1984 and taking tractors and carts into the plaint schedule property through the “A B C D” road margin. The defendants 1 and 2 and another unauthorisedly raised thatched huts in “A B C D” marked property in the year 1986. The plaintiff filed OS No.78/1996 on the file of Munsif Magistrate, Alamuru and it was decreed directing the defendants to remove the same and the appeal filed by the defendants 1 and 2 and others has been dismissed on merits. Thereafter, he filed EP No.20/94 and got removed the thatched house on 29-6-1996. After removing the thatched house, the defendants 1 and 2 by managing the Villagers of Z.Medapadu and with the active support of defendants 3 to 5 hatched up a plan to construct bus shelter in “A B C D” marked portion in the plaint plan. Defendants 1 and 5 filed separate written statement. It is contended by defendant No.1 that one canal bund is situated on the northern side of the plaint schedule property. The plaintiff used to reach Mandapeta-Dwarapudi road through that canal bund and there is no necessity or occasion for the tractors and carts of the plaintiff to pass across “A B C D” portion of the plaint plan. Aggrieved by the orders passed in AS No.43/93, he filed second appeal before the High Court. All the defendants are in possession and enjoyment of “A B C D” marked property till recently when defendant No.5 started extending the width of road on both sides of R & B road. “A B C D” marked portion was already taken over by the fifth defendant for extension of road prior to filing of the suit. In the written statement filed by the fifth defendant, it is contended that for the convenience of the passengers at large Grampanchayat wanted to construct a bus shelter in R & B road margin in Z-Medapadu bridge and made proposals to the District Collector. On that, the District Collector agreed for construction of bus shelter under Janmabhoomi programme and the same was accepted by R & B Department and issued proceedings dt. 17-1-1997. Thereafter, the third respondent-Grampanchayat constructed bus shelter legally with the prior permission of the concerned authorities. On the above pleadings, the following issues were settled for trial: 1. Whether the plaintiff is entitled for declaration of easementary right of way through the ABCD marked portion of plaint plan? 2. Whether the plaintiff is entitled for consequential mandatory injunction for the removal of construction made in the item No.2 of plaint schedule property, corresponding to the ABCD in the plaint plan? 3. Whether the ABCD marked portion of the plaint plan belongs to his site and as such R&B is proper and necessary party to the suit proceedings? 4. To what relief? On behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A-1 to A-7 were marked. On behalf of the defendants, D.Ws.1 to 4 were examined and Exs.B-1 to B-4 were marked. The trial court after elaborate judgment decreed the suit of the plaintiff holding that the plaintiff has got a right of way over A B C D marked property along with other public and granted mandatory injunction for removal of the construction by the defendants within six months from the date of decree. Failure to do the same, the plaintiff is at liberty to get those constructions removed with his own costs and recover the same from the defendants. Aggrieved by the same, defendants 3 to 5 filed AS No.76/2003, whereas first defendant filed AS No.68/2004 before the Senior Civil Judge, Ramachandrapuram. Learned appellate Judge dismissed both the appeals holding that defendants 4 and 5 cannot plead that the road margin belongs to the R & B Department only and it can make use as it wishes and it accepted for the construction of bus shelter in view of the proceedings of the District Collector on the proposals made by D-3-Grampanchayat. The defendants 3 to 5 who preferred AS No.76/2003 has not preferred any second appeal. Though the appellant is not claiming a right in the suit schedule property, he established that it is a road margin taken out by R & B, where the Grampanchayat constructed a bus shelter; therefore he cannot resist the claim of the plaintiff. The findings recorded by the courts below are based on appreciation of evidence and cogent reasons were assigned for coming to such conclusion, which do not suffer from any manifest illegality. Therefore, I do not find any question of law, much less substantial question of law arises for consideration in the second appeal. The second appeal is accordingly dismissed at the stage of admission. ______________ A.GOPAL REDDY,J Dt.6-11-2009 kmr