THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRTEENTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.832 OF 2001 Between: Varugugandu Yashoda Devi …Appellant A n d Itha Bhumaiah (died) per LRs and others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.832 OF 2001 JUDGMENT: This second appeal is directed against the judgment and decree dated 21.06.2001 in A.S.No.6 of 1994, on the file of the Senior Civil Judge, Asifabad, wherein the said appeal filed by the appellant herein, was dismissed, confirming the judgment and decree dated 25.02.1994 in O.S.No.38 of 1987, on the file of District Munsif, Luxettipet, whereunder the suit filed by respondents 1 to 4 herein, the plaintiffs, for mandatory injunction, was decreed, directing removal of the structures raised by the appellant herein on the public road and for vacating the same and granting permanent injunction restraining the appellant herein from causing obstruction to the public road. 2. Arguments of the learned counsel for the appellant and the learned counsel for the respondents are heard. Perused the record. 3. Respondents 1 to 4 herein filed the suit O.S.No.38 of 1987 against the appellant and others, including the 5th respondent- Mancherial Municipality and 6th respondent- Cooperative Housing Society, seeking the reliefs of mandatory injunction and permanent injunction with the following averments:- Defendant No.7 Cooperative Housing Society (for short ‘the Society’) acquired Ac.2-20 gts of land in Sy.No.87 in Garmilla Shivar which is a government poramboke land and divided the same into plots with roads for access and after obtaining approval of the layout, 17 plots were allotted to the members of the Society. The 1st plaintiff, who is one of the members, was allotted plot No.15. The Society, after receiving sale consideration, executed registered sale deeds in favour of 17 members in the respective plots with specific boundaries in the years 1960 and 1961. Accordingly, D-7 executed a registered sale deed dated 02.11.1960 in favour of the 1st plaintiff for plot No.15. D-6, the Municipality, after doing plotting work as per the town plan handed over the plots to the Society by letter dated 23.01.1959 and thereafter the Society completed other formalities and gave delivery of possession of the plots to the allottees. The allottees, after obtaining permission from the Municipality, constructed buildings. The 1st plaintiff accordingly constructed his house on plot No.15 which was assigned municipal door No.11-80. There is a 20’ width road to the west of the 1st plaintiff’s plot connecting to another road of 20’ width on south and 20’ width road on the north. To the north of plaintiff’s house, there is a 20’ width road connecting P.W.D road and 30’ width road in front of forest office. On the west of plaintiff’s plot and beyond the 20’ road, there is plot No.16. The Society allotted plot No.2 to the 2nd plaintiff and plot No.14 to the 3rd plaintiff and plot No.13 to the 4th plaintiff and they have all constructed houses. The 1st defendant has encroached upon the road situate to the south of plot No.2 belonging to the 2nd plaintiff and defendants 2 to 5 encroached upon the road to the west of plot Nos.14 and 13 allotted to plaintiffs 3 and 4. D-1 purchased plot No.16 in the year 1968. To the east and also to the north of plot Nos.16 and 17, there are roads of 20’ width. After purchase of plot No.16, D-1 in collusion with the owner of plot No.17 encroached upon 20’ width of road on the east and north and constructed basement and compound wall in the year 1986. The said construction is causing nuisance to the public, including the plaintiffs. On seeing the encroachment by D-1, other defendants D-2 to D-5 also encroached upon the 20’ width road in front of their respective plot Nos.12 to 15. D- 1 to D-5 have no right to encroach upon the road left by the Society for use of the allottees. The plaintiffs and other allottees made several representations to Mancherial Municipality, but in vain. Hence, the suit for mandatory injunction for removal of the structures made on the public road by D-1 to D-5 and also for permanent injunction. 4. The appellant herein (D-1) filed written statement contending, in brief, as follows:- D-1 purchased plot No.16 from the original allottee. In between the said plot and plot No.2 of the 2nd plaintiff, there was no road. Plot Nos.16 and 17 were allotted to Hajari Kanakaiah and A.Venkateswarlu. As plot No.17 was abutting the main road and plot No.16 on the rear side, both the allottees made division of the plots to suit their convenience by clubbing both the plots from east to west. Both the plots have access to main road. Thereafter, D-1 purchased plot No.16 from Hajari Kanakiah and V.Gurunatha Rao purchased plot No.17 from A.Venkateswarlu. There is no road to the east of plot Nos.16 and 17. The plaintiffs and others have got access to the main road from the other roads situate to the east of their plots. D-1 to D-5 have not made any encroachment upon any part of the public roads. They made constructions in the plots purchased by them after obtaining permission from the Municipality. 5. D-2 to D-5 filed written statement raising similar contentions. 6. D-6 Municipality filed written statement contending, in brief, as follows:- There is no approved layout for the plots and the sanction of the Director of Town Planning, Hyderabad and Municipal Council, Mancherial was also not obtained by the Society before registering of the plots to its members. D-6 Municipality is not having any records of the said plots and their allotment and layout etc. D-1 was granted permission for construction in plot No.16 in accordance with the plan submitted by her through resolution dated 15.10.1985, but no sanctioned roads were formed. There is no road in the master plan sanctioned by the government in between plot Nos.16 and 2. 7. D-7 Society filed separate written statement contending, in brief, that D-7 Society acquired land in Sy.No.87 and allotted the same by way of plots to the members. The layout plan was not submitted either to the Municipality or to the Director of Town Planning and there was no approval by the Municipality or Director of Town Planning. Though the Society originally intended to leave some space between the row of plots 1 and 2 and row of plots 16 and 17, in fact, no space was left while executing the sale deeds. The Society has not formed any roads in the layout nor handed over any such roads to the Municipality. The land covered by plot Nos.16 and 17 is 400 sq. yards each and they were sold in the year 1960- 61. 8. On the strength of the above pleadings, the trial Court framed the following issues: i. Whether the plaintiffs are entitled for mandatory injunction as prayed for? ii. To what relief. 9. During the course of trial, P.Ws.1 to 6 were examined and Exs.A-1 to A-28 were marked on behalf of the plaintiffs. D.Ws.1 to 4 were examined and Exs.B-1 to B-10 were marked on behalf of the defendants. 10. On a consideration of the evidence available on record, the trial Court held that the plaintiffs are entitled for the relief of mandatory injunction for demolition of the walls constructed on the 20’ width road situate between plot Nos.12 to 15 and 16 to 18 from north to south and also road situate between east to west in between plot Nos.16 and 1 to 3. Accordingly, the suit was decreed, directing the defendants to remove the structures on the public road as marked in Ex.A-1 plan and also for permanent injunction. Aggrieved by the same, the 1st defendant preferred an appeal in A.S.No.6 of 1994, on the file of the Senior Civil Judge, Asifabad. By the impugned judgment dated 21.06.2001, the learned Senior Civil Judge dismissed the appeal, holding that the defendants have obstructed the way as shown in Ex.A-1 plan and confirmed the decree granted by the trial Court. Assailing the same, the 1st defendant preferred the present second appeal. 11. The main contention of the learned counsel for the appellant is that there is no approved layout even according to the 6th respondent Municipality and no sanctioned layout plan is filed showing demarcation of any roads in the disputed area and Ex.A-14 is not proceedings issued by the Municipality approving the layout, but is only a letter and the Courts below have misread the contents of Ex.A-14 and erroneously drew an inference of existence of a road through the disputed area. He would, therefore, contend that in the absence of any approved layout and in the absence of any sanctioned road through the disputed area, the question of the appellant/D-1 encroaching upon any public road and causing obstruction or nuisance to the people of the locality, does not arise. In that connection, he invited attention to various provisions of the A.P. Municipalities Act, 1965, more particularly Sections 184, 185 and 187 and the Layout Rules, 1970 and contended that the Act and the Rules provide a complete mechanism for approval of a layout and for sanction of the layout plan and formation of the roads proposed and in the absence of any such layout duly approved and layout plan duly sanctioned in accordance with the relevant provisions of the Act and Rules, it is not open for the plaintiffs to contend that the disputed area is a public road and that the constructions made by appellant/D-1 thereon are causing obstruction or nuisance to the public. 12. The learned counsel for the respondents/plaintiffs, on the other hand, would contend that based on the oral and documentary evidence, the Courts below have recorded concurrent finding on a question of fact to the effect that the disputed area is a road and the construction made by the appellant/D-1 is causing obstruction and nuisance to the public and, therefore, the said construction is liable to be demolished as it constituted encroachment by appellant/D-1 upon the public road. He would, therefore, contend that the said concurrent finding on a question of fact does not call for any interference in a second appeal as held by the Apex Court in a catena of decisions. 13. It is not disputed that D-6 Society acquired an extent of Ac.2-20 gts in Sy.No.87 situate in Garmilla shivar which is a government poramboke land and divided the same into plots by demarcating the roads and providing access to the various plots and allotted the same to the members of the Society and executed registered sale deeds in their favour after receiving the sale consideration and delivered possession of the respective plots to the members concerned. It is also not disputed that all the plots were of the same extent, each measuring 45’x80’. In that process, the 1st plaintiff purchased plot No.15 under a registered sale deed Ex.A-4. The 2nd plaintiff purchased plot No.2 under registered sale deed Ex.A-5. The 3rd plaintiff purchased plot No.14 under a registered sale deed and the 4th plaintiff purchased plot No.13 under a registered sale deed Ex.A-6. Plot No.16 was purchased by the original allottee H.Kanakaiah under Ex.A-7. Plot No.17 was purchased by the original allottee A.Venkateswarlu under Ex.A-9. It is borne out by the evidence that Kanakaiah and Venkateswarlu have clubbed both the plots and divided them east- west so that both plots will have access to the main road situate on the west. Subsequently, appellant/D-1 purchased the plot of Kanakaiah under registered sale deed Ex.A-8. According to the plaintiffs, in between their plots and D-1’s plot, there is a road of 20’ width running from north to south and providing access from plaintiff’s plot to the road on the south. They would further contend that in between plot Nos.1 and 2 and plot Nos.16 and 17 also there is a road of 20’ width providing access to the main road on the west and another road of 30’ width on the east. The appellant/D-1, on the other hand, would deny the existence of any such roads to the east and north of his plot and would contend that his site extends on the east up to plot No.15 of the 1st plaintiff and on the north up to plot No.2 of the 2nd plaintiff and plot No.1. According to him, the access for the plaintiffs from their plots is on the other side i.e., for plaintiffs 1, 3 and 4 is towards east and for 2nd plaintiff towards north, but not towards west or south. The disputed area, which according to the plaintiffs, is a road and the existence of which is denied by appellant/D-1 as shown in the red colour in the location plan Ex.A-1, which is also attached to the decree. 14. In support of their contention about the existence of the road between plot No.15 of 1st plaintiff and plot No.16 of D-1 on the other side, the plaintiffs seek to rely upon the boundary recitals in the sale deeds executed by D-7 Society in favour of H.Kanakaiah, the vendor of appellant/D-1 for plot No.16 under Ex.A-7 and the sale deed in favour of A.Venkateswarlu for plot No.17 under Ex.A-9. As per Ex.A-7, there is road on the east and plot No.l7 on the west and a road on the north and plot No.18 on the south. Similarly, Ex.A-9 also shows plot No.16 of Kankaiah on the east and public road on the west, road on the north and plot No.18 on the south. Thus, as per the boundary recitals contained in both Exs.A-7 and A-9 executed by D-7 Society in favour of H.Kanakaiah, the vendor of D-1, and A.Venkateswarlu, there is a road on the east of plot No.16 and another road on the north of plot Nos.16 and 17. Subsequently, plot No.16 was purchased by appellant/D-1 from H.Kanakaiah under Ex.A-8, wherein there is a change in the boundaries on account of re-division of original plot Nos.16 and 17 between Kanakaiah and Venkateswarlu, as per their mutual convenience. Though Ex.A-8 does not disclose the existence of disputed road on the east and north, it is not explained by appeallant/D/-1 as to how the roads which were originally shown as existing in the sale deed Ex.A-7 in favour of D-1’s vendor Kanakiah and sale deed Ex.A-9 in favour of Venkateswarlu got disappeared. D-1 cannot acquire better rights than what his vendor was having. 15. D.W.3 the Secretary of D-7’s Society admitted the execution of the sale deeds by the Society in favour of the plaintiffs and D-1’s vendor Kanakaiah and Venkateswarlu and also the recitals therein. D.W.3 also admitted that Ex.A-1 is a location plan prepared by the Society. He also admitted that there is a proposed lane in between plot Nos.16 and 17 and plot No.2, but according to him, no space was left for creating the passage. He, however, admitted the boundaries mentioned in Exs.A-5, 7 and 9 to be correct and that the private roads in the colony as per Ex.A-1 plan. According to him, while making the plots, space for roads was demarcated as shown in the plan Ex.A-1, but due to financial stringency actual roads could not be laid and the space meant for roads was utilized by the allottees, who constructed the houses. He categorically admitted that such space meant for roads was provided in between plot Nos.16 and 17 and plot Nos.1 and 2 for the use of colony people. The existence of road in the disputed area is, thus, admitted by D.W.3, the Secretary of D-7’s Society. But, according to him, the Society could not lay the roads, which enabled the allottees to make use of those sites also meant for roads while constructing the houses. The plaintiffs placed strong reliance on Ex.A-14 letter dated 23.01.1959 addressed by D-6 Municipality to Secretary of D-7’s Society wherein it was stated that the committee has resolved to allot 20 vacant plots as per the town plan in the low income group housing area free of cost as per the plan of allotment. D.W.3 admitted that such a letter was received by the Society from the Municipality and also its contents. A perusal of the letter Ex.A-14 would reveal that Municipality has accorded its sanction for allotment of vacant plots as per the plan of allotment. Ex.A-14 was in response to the application dated 14.01.1959 submitted by the Society, which is referred to therein. According to the plaintiffs and also D.W.3, Ex.A-1 is the location plan. The boundary recitals of the sale deeds in favour of the original allottees H.Kanakaiah, vendor of D-1 for plot No.16, and A.Venkateswarlu for plot No.17, clearly show the existence of roads on the east and north as shown in the plan Ex.A-1. Ex.A-14 indicates the existence of an approved plan by referring to plan of allotment, but the said approved plan is, however, not placed before the Court. 16. D.W.4, the Supervisor of the Town Planning department of Municipality, categorically stated that the Municipality will not accord sanction for construction of houses unless the layout is approved. Admittedly, several allottees have constructed houses in the respective plots allotted to them which pre-supposes the existence of an approved sanction for the layout and sanctioned plan even as per the evidence of D.W.4. D.W.4 also admitted that a wall is constructed between plot Nos.12 and 16 blocking the way to reach P.W.D road on the west, but he does not know whether any permission was obtained from Municipality for construction of the said road. D-6 Municipality, however, pleaded in the written statement that there is no approved layout for the plots and sanction of the Director of Town Planning and Municipal Council was also not obtained by the Society for registration of the plots. D-6, however, further admitted that D-1 was granted permission for construction of a house on plot No.16 in accordance with the plan submitted by her by Municipal Council through resolution dated 15.10.1985. Even according to D-6 Municipality, there was no approved layout and no sanction is obtained from the Director of Town Planning. It is inexplicable as to how the Municipality granted permission for construction of house by D-1 on plot No.16. Curiously, even D-7 in their written statement pleaded that layout plan was not submitted to the Municipality or to the Director of Town Planning and there was no approval for the same and no roads were formed by the Society. D-7’s Society even went to the extent of pleading that the boundaries mentioned in the sale deed are not in accordance with the spot. D-7’s Society filed written statement virtually supporting the contention of the plaintiff and denying the existince of the road, but the boundary recitals in the sale deeds executed by the Society, on the other hand, would show existence of the roads to the north of plot Nos.16 and 17. When once it is shown from the evidence on record, particularly the boundary recitals in the sale deeds executed by the Society, coupled with the contents of Ex.A-14 and the admissions of D.Ws.3 and 4 that there was, in fact, an earmarked road through the disputed site and such roads were in existence even by the date of sale of plot Nos.16 and 17 in favour of D-1’s vendor Kanakaiah and A.Venkateswarlu, the subsequent disappearance of the roads on account of the constructions made by D-1 and others would clearly lead to inference of encroachment by them on the spaces meant to be developed as roads. It is immaterial whether or not there was any sanctioned road. Section of the A.P. Municipalities Act, 1965 defines ‘public street’ as any street, road, square, court, alley, passage or riding path over which the public have a right of way whether a thoroughfare or not. 17. Any construction blocking such passage causing annoyance to the public certainly amounts to public nuisance. The evidence on record shows that on account of the construction made by D-1 over the site which was earmarked for road there has been not only obstruction to the passage for reaching the roads on the south and west but also there was public nuisance due to inundation of the area with rain and drainage water as the lie of the land is from east to west. When once the evidence on record shows the existence of a road through the disputed area and the Courts below have, on proper appreciation of the evidence, recorded a finding about such existence of the roads on the east and north of plot Nos.16 and 17, such concurrent finding does not call for interference in the said appeal. It is not a case where the Courts below have recorded a finding on no evidence or any inadmissible evidence was relied upon or any admissible evidence was left out. 18. The learned counsel for the appellant invited attention to a decision of this Court in TIRUMALA TIRUPATHI DEVASTHANAMS V. TIRUPATHI MUNICIPALITY[1], wherein this Court held as under: “The High Court in a Second Appeal would be justified in interfering with the findings of the first appellate Court on a question of fact when the said finding is not based on any evidence on record at all.” In the above case, the trial Court held that the assessment of tax on the building in question ought to have been made on capital value and not on rental value, as the building was self-occupied but not leased out to tenants. The 1st appellate Court reversed the said finding holding that the building was required to be assessed based on the rental value. In the second appeal, it was contended by the appellant TTD that the first appellate Court without any basis in the evidence assumed that the building was let out to the employees of TTD on concessional rate and rents were being collected though D.W.1 an employee of the Municipality admitted in evidence that the premises was formerly used as stables and subsequently it was used as godown and stores by the TTD. It was, therefore, found that where it is shown that the building is occupied by the owner, assessment on the basis of rental value was in violation of the statutory provisions of the A.P. Municipalities Act. It was further observed that the finding of the first appellate Court that the building was let out to the employees was not supported by any evidence on record. It was, therefore, held that interference with the finding of the first appellate Court on a question of fact when the finding is not based on any evidence on record, is justified. Such is not the situation in the present case. Firstly, both the Courts below have recorded a concurrent finding on a question of fact as to whether or not the disputed site was a road earmarked as such in the layout plan. Secondly, the evidence on record, particularly the recitals of the boundaries in the title deeds of appellant/D-1’s vendor regarding plot No.16 and A.Venkateswarlu regarding plot No.17 clearly showed the existence of the road on the east and north of those plots, which is the disputed area. The admissions of D.Ws.3 and 4 in the evidence also supported the version of the plaintiffs about the existence of the road. The fact that D-6 Municipality and D-7 Society have taken the plea that there was no approved layout and that they have not produced the sanctioned plan of the layout does not alter the situation. If the plot owners have constructed houses even without there being an approved layout and a sanctioned plan, certain other legal consequences may ensue if such constructions are found to be in violation of any statutory provisions nothwithstanding the fact the Municipality accorded permission for raising such constructions. Ex.A-14 is not the only piece of evidence relied upon by the Courts below to record a finding as to the existence of the road. In fact,