HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 1358 OF 2010 DATED BETWEEN Seshapu Ayyanna (died) and ors …….Appellants and Ponnam Lakshminarayana and anr …… Respondents HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA SECOND APPEAL No. 1358 OF 2010 JUDGMENT: This Second Appeal under Section 100 CPC is filed aggrieved by the judgment and decree dated 20.10.2008 passed in A.S.No. 34 of 2001 whereby the learned Senior Civil Judge, Tadepalligudem, dismissed the said appeal filed by the appellants/defendants, confirming the judgment and decree dated 12.07.2001 in O.S.No. 344 of 1995 on the file of the Court of the learned Principal Junior Civil Judge, Tadepalligudem, W.G. District. The respondents/plaintiffs filed the aforesaid suit seeking relief of declaration that the ‘AKLM’ marked street is a common street and also seeking a consequential mandatory injunction for removal of obstructions. The Court below upon consideration of the oral and documentary evidence on record, held that the ramp constructed by the first appellant/first defendant and neem tree planted by him in the suit lane by the side of the compound wall are causing on obstructions to the respondents/plaintiffs and others and decreed the suit. Aggrieved by the said decree and judgment, the appellants/defendants preferred an appeal in A.S.No. 34 of 2001 on the file of the learned Senior Civil Judge, Tadepalligudem. The lower appellate Court, on re-appreciation of the evidence on record, dismissed the appeal, confirming the findings of the trial Court. Hence the second appeal. The learned Counsel for the appellants/defendants submitted that both the Courts below went wrong in holding that branches of the neem tree are causing obstruction to the residents of the suit lane and that ramp constructed by the first appellant/first defendant is causing obstruction to the respondents/plaintiffs. The learned Counsel for the appellants submits that due to the existence of the ramp and the neem tree in the suit lane, there is no obstruction or inconvenience to the persons who are moving along with that lane. Besides the above submissions, the learned Counsel for the appellants/defendants sought to raise substantial questions of law as to whether the respondents/plaintiffs are entitled to grant of permanent and mandatory injunctions since the alleged obstruction by way of small ramp and spreading of branches of neem tree is not an obstruction and whether the plaintiffs who raised pials, ramps, cement pillars etc in the suit street are entitled to the relief of injunction since they are the guilty of wrong. Heard. Perused the case file. Before the trial Court, to prove the claim, the respondents/plaintiffs examined P.Ws. 1 to 5 and got marked Exs.A.1 to A.5. On behalf of the appellants/defendants, D.Ws.1 and 2 were examined, however, no documentary evidence was adduced. Ex.C.1 is the report of the Advocate Commissioner. It is on record that the Advocate- Commissioner appointed by the Court below was examined as P.W.5, who deposed that the first appellant/defendant constructed a ramp in the suit lane and planted one neem tree by the side of his southern side compound wall. The evidence P.W.5 coupled with his report at Ex.C.1 revealed that the construction of the said ramp and the branches of the said neem tree which are hanging on the suit lane, are causing obstruction to the persons and vehicles which are moving in the suit lane; that the fist appellant/defendant is in the habit of keeping his tractor and trailor and the implements in the suit lane underneath the neem tree, which is causing obstruction to the passers bye and also causing vehicular traffic. It seems that P.W.5 was neither cross-examined nor any objections were filed to the report of the Advocate Commissioner. Further, the evidence of P.Ws.1 to 4 also corroborates the evidence of the Advocate Commissioner. It is manifest from the record and admitted to by D.W.1 that after filing the suit, the P.W.1 removed the thatched house projected into the suit lane; that he cut and removed the trees which are situate in the premises of P.W.1. D.Ws.1 and 2 also admitted in their evidence that the first appellant/defendant constructed a ramp in the suit lane and he planted one neem tree in the suit lane by the side of southern side compound wall and that in view of the same, obstruction is caused to the respondents/plaintiffs and others who are residing in that suit lane. It is common knowledge that removal of encroachments would primarily with a view to help for free flow of traffic. For this purpose the encroachments to be removed are those which are erected either on the road or on is flanks i.e. structures raised on the road or flanks which tend to impede free flow of traffic. In such cases the encroachments must be removed forthwith, because no one has a right to raise any structure on the road and its flanks. The structures may be of temporary character or permanent character, that do not matter. Secondly, structures raised unauthorisedly on private land abutting the road may at times cause traffic problems. On reference, in view of the difference of opinion between Amareswari J., and Upendralal Waghray J., Jeevan Reddy, J., (as they then were ) expressed opinion that 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. At this rate, anybody will be free to occupy a portion of such public streets, highways and roads with the spacious argument that there is still space left for public to pass by. Slowly these encroachments may become permanent. Thus, it is seen that it has nowhere been held that a wrong once committed and found to be so cannot be allowed to be a continuing wrong where the encroachment which gives rise to it is by an act like putting up a construction. In view of the foregoing discussion, the contentions of the learned Counsel for the appellants merits no consideration. Having regard to the facts and circumstances of the case and considering the submissions of the learned counsel, I do not see any question of law, much less a substantial question of law involved in this Second Appeal warranting interference with the concurrent findings of the Courts below. The Second Appeal fails and is accordingly dismissed. There shall be no order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 10th October, 2011. Msnro